March 14, 2023 | Title IX
In a nutshell, Title IX is a federal statute that prohibits sex discrimination in any educational program receiving federal funding. It is a civil rights law that courts have interpreted broadly to include issues such as campus sexual harassment and sexual assault. A Title IX complaint can even set the stage for federal criminal charges. So are Title IX complaints public? There is no simple answer to that question.
Since a Title IX complaint can result in negative consequences for accused individuals and institutions long before the complaint is resolved one way or the other, the degree of confidentiality of Title IX complaints is a major issue.
Title IX Actions Are Administrative Complaints, Not Civil Lawsuits
A civil lawsuit is a matter of public record. However, the same is not the case with a Title IX complaint. An accuser generally files a Title IX complaint with the administration of an educational institution, typically a college or a university.
Department of Education Confidentiality Standards
According to a Department of Education Question and Answer document, a school may not disclose the identity of any of the parties in a Title IX case (including the accuser) except under the below-described circumstances.
When a Party Consents To Disclosure of Their Identity
A party can consent to the disclosure of their identity.
When FERPA Permits Disclosure
The Family Educational Rights and Privacy Act (FERPA) permits the nonconsensual disclosure of information about disciplinary proceedings by colleges and universities in connection with crimes of violence or non-violent sexual offenses. Keep in mind that FERPA does not require disclosure; it only permits it.
When Disclosure Is Legally Required
The law requires disclosure of the identity of the accuser or the accused under certain circumstances. These include:
- An accused, for example, has a constitutional right to know the identity of their accuser.
- Disclosure of certain information is an implied right if it is necessary to carry out the purposes of Title IX protections. A certain amount of disclosure is required, for example, to carry out an investigation into the Title IX complaint and to take action based on the results of the investigation. This disclosure includes the identity of the accuser, the identity of the accused, and details about the offense.
Even if one or more of these exceptions apply, it is still illegal to disclose a party’s identity for retaliatory purposes.
Freedom of Information Requests
A person may be able to obtain some information about an internal investigation by making a request through the Freedom of Information Act (FOIA). Even under a FOIA request, however, the school must protect the identities of the parties involved.
Private institutions are not bound by the Freedom of Information Act even if they receive federal funding. Yale, for example, would not be bound by such a request even though the University of Michigan would be.
University Code of Conduct Requirements
Some colleges and universities require confidentiality in sexual misconduct cases under their own codes of conduct. Such restrictions are particularly likely while a sexual misconduct case is ongoing.
Of course, university codes of conduct do not have the force of substantive law. Universities, however, can impose significant penalties, such as expulsion, for violations.
The following exceptions to confidentiality appear frequently in university conduct codes:
- Conversations with healthcare providers;
- Conversations with religious authorities;
- Conversations with advisors;
- Cooperation with police and with school disciplinary authorities; and
- Conversations with parents.
Many university codes of conduct apply more liberal standards to disclosure of general information about a case than they do to disclosure of the identities of the parties involved.
When in Doubt, Hire an Experienced Title IX Attorney
Title IX complaints are not nearly as straightforward as they might seem. Federal courts, for example, have added layer upon layer of nuance. Consequently, don’t trust anyone but an experienced Title IX lawyer to ensure that you receive fair treatment.
Contact the Dayton Title IX Attorneys at Suhre & Associates, LLC For Help Today
Suhre & Associates, LLC – Dayton
130 West Second Street #17-129
Dayton, OH 45402