Last Updated on August 24, 2023 by Michelle Ball
By Michelle Ball, Sacramento California Expulsion, Special Education, sports/CIF, College, Education and School Attorney/Lawyer for Students since 1995
Title IX (9), a federal civil rights law to prevent sexual harassment, is now being grappled with in K-12 schools. However, it is being inconsistently applied. Some schools suspend and expel a student and never pursue a Title IX investigation. Others pursue a Title IX investigation and emergency removal. Some muddle these together.
When does traditional discipline apply after a Title IX complaint has been lodged? Later than you think.
Title IX Delays Traditional Public School Discipline
Title IX restricts student discipline while the sexual harassment investigation is ongoing. Just what does Title IX say? That traditional school discipline, such as suspension or expulsion under state law, must be delayed until after the Title IX process is complete.
Do schools know and follow this? They are supposed to.
Section 106.44(a) of Title 34 of the United States Code outlines this prohibition on traditional discipline processes:
A recipient’s response must treat complainants and respondents equitably by offering supportive measures as defined in § 106.30 to a complainant, and by following a grievance process that complies with §106.45 before the imposition of any disciplinary sanctions or other actions that are not supportive
measures as defined in § 106.30, against a respondent.
This is interpreted to mean that state law discipline cannot proceed until the Title IX investigation is completed.
Why The Delay of Suspension and Expulsion is Good
Parents may be ecstatic that Title IX will stop typical state discipline processes, like expulsion and suspension, at least temporarily. Yes, it is great that a student will not receive a formal five day suspension and expulsion right away.
The Title IX process gives an accused student the chance to address the sexual harassment allegations thoroughly, and to try to defend themselves.
Under Title IX the student is also supposed to be presumed innocent, which is good. Theoretically, innocent students will get a fair shake and will be vindicated during the Title IX investigation process.
If the Title IX investigation report finds no sexual harassment occurred, hopefully the school district would then not proceed to expulsion or suspension. A student could continue attending their school, or return to it, if they were temporarily moved.
Delay is Bad as It Does Not Stop Student Removal (and They’ll Probably Expel Them Anyway in the End)
Unfortunately, after decades of representing students, I am jaded. I don’t like the delay. I believe almost all Title IX’s will end up in a finding of guilt, as they are based on student testimony, which the Title IX investigator inevitably will determine supports a breach.
Also, lack of immediate suspension or expulsion does not mean that a student being investigated won’t be removed from their school during the Title IX process. They may still be pushed out on an emergency removal.
Emergency removals are based on the accusations against a student, which are not yet validated and may not be true. With an emergency Title IX removal, a student may be transferred to a different school, or even put on independent study, while the Title IX investigation continues.
Delay is Negative as it Extends Length of Process
Additionally, the Title IX process itself has no clear time limitations and can be quite long. Although there is language talking about a 60 day period for investigations, this is not binding and can be extended.
If the Title IX investigation goes longer, say 90-120 days, the traditional discipline process would not start until after that. Any time in the expulsion process would just lengthen the pain for the accused student.
So, if a student receives a calendar year expulsion for something like sexual battery, after a Title IX investigation, the entire process would be far longer than a year, depending on how long each part goes.
This delay seems quite unfair to students. If students pushed out under Title IX could get “time served,” the process would be more appropriate. However, there is slim chance any school district would do that.
Delay is Bad for Accused Student As It Gives School More Evidence to Expel
The other disadvantage with a delay in the typical discipline process, is that the school has a lot of time to build a strong expulsion case. They also get great evidence from the Title IX process.
The Title IX process includes an investigator, and an investigation report, which will be used against the student in their expulsion case. Many school administrators jump up and down in glee, surely, to know this will be developed, as it strengthens their expulsion case.
The investigator can also be a witness against the accused student at their expulsion hearing, which will not help the student.
In typical expulsions, not preceded by a Title IX investigation, there is no formal investigator and the matter is often based on weak “evidence” and student statements.
This Title IX, then expulsion, process, is a one-two knockout punch and is terrible for the accused student.
As such, unless the accused student is found not to have sexually harassed during the Title IX investigation, or a resolution reached, they may later be toast.
It is unfortunate.
Michelle Ball is an attorney for students, who helps with K-12 public school Title IX matters, reaching out from the Sacramento Valley across California. As a lawyer representing students since 1995, she can help across the state in American Canyon, Lodi, Banning, Desert Hot Springs, Stockton, Redding and many other locales.
Here is a US Department of Education Video (inserted below) on Title IX, issued when the regulations came out impacting K-12 public schools.