Inside Title IX: The law that puts students’ futures at risk

Mar. 9, 2018 By NMGL

Special report

Over time, laws that once seemed reasonable can prove to be troublesome with unanticipated negative consequences. So it is with Title IX, a law enacted by Congress more than 45 years ago to provide greater opportunity for women in college sports.

Today, Title IX – formally Title IX of the Education Amendments of 1972 – is being used by some college and government officials as the lever for drastic, dangerous action against students accused of sexual assault.

As Andrew T. Miltenberg, a New York attorney specializing in the field of campus assault due process, argues, Title IX regulations have placed excessive pressure on universities and colleges to establish policies and protocols for dealing with Title IX offenses – policies which have created powerful biases against the accused.

The result is a series of far-reaching decisions in which students accused of sexual assault have been banned from campus, in some cases losing the credits they earned and paid for.

At its most basic, Title IX prohibits federally-funded educational institutions from discriminating against students or employees on the basis of sex. However, over the last five to seven years, an increasing number of colleges and universities have set up policies and procedures regarding campus sexual assault to comply with Obama-era Title IX rules.

Because gender discrimination and sexual assault have become more visible in recent years, Miltenberg says, “Title IX has developed into a process on campuses by which a complaint can be made regarding sexual assault or sexual discrimination.” As a result, the judicial system is kept out of the process, leaving disciplinary actions up to the discretion of each individual educational institution.

Under Title IX, students accused of sexual assault can face severe sanctions, ranging from suspensions to expulsion. In some instances, students found guilty of sexual assault under Title IX are unable to transfer credits to other colleges, preventing their higher-education dreams from ever being achieved.

Enforced by the U.S. Department of Education’s Office for Civil Rights (OCR), Title IX has put a strain on colleges and universities, saying institutions must properly respond to and resolve all allegations of assault or face a reputation-crippling investigation. “Because of this pressure on institutions to face investigation,” says Miltenberg, “schools are being hyperaggressive.”

Institutional fears of lost funding and diminished public perception have forced colleges and universities to enhance their “definition of what constitutes sexual assault, or nonconsensual sex,” Miltenberg says. In turn, the policies and protocols put in place to ensure the safety of students on campus create a system that favors the accuser and disproportionately and unjustly affects the accused.

Due to the environment these issues create, Title IX “has evolved to be a weapon on campus that goes far beyond protecting victims of sexual discrimination and assault, and has unfortunately become a tool people are using in relationships,” Miltenberg remarks. And since college sexual assault cases are based on a preponderance of the evidence, rather than on clear and convincing evidence, the accused may be found guilty of sexual assault on a 50% likelihood of guilt.

Miltenberg concludes: “In Title IX processes at universities and colleges, the preponderance-of-the-evidence standard essentially means that immediately upon the allegations being made – all things being equal – the accused will be held responsible.”

For a confidential consultation or to learn more about Title IX offenses, contact Nesenoff & Miltenberg, LLP today at 212-736-4500 or