Last Updated on August 17, 2023 by Michelle Ball
By Michelle Ball, Sacramento California Expulsion, Special Education, sports/CIF, College, Education and School Attorney/Lawyer for Students since 1995
Receiving a sexual harassment complaint or sexual violence allegation can have significant consequences for students. For many years, Title IX (aka “title nine”), a federal law prohibiting sexual harassment and discrimination was mainly used to punish college students. However, Title IX is now being used in public elementary, middle and high schools.
If a Title IX complaint is lodged against a public school student, that student may be held out of their school even prior to the traditional school suspension or expulsion process beginning on an emergency removal. This means a student exclusion may extend for a long time.
What is Title IX?
Title IX is very broad and covers issues from discrimination in sports to inappropriate sexual touching to stalking. Unwelcome sexual conduct, date rape, domestic violence, and sexual battery are also covered under Title IX.
Title IX applies in schools which receive federal funds. As a federal law, it supersedes state law, including California law, on expulsion hearing timelines and rights.
Examples of Title IX Issues
Some student actions which could be reported under Title IX could be:
- A student touches another student’s private parts without their consent
- A student makes sexual jokes, teases, or takes other actions that create a hostile environment at school
- A student sends sexual pictures
- A student exposes themselves on campus
- A student posts degrading sexual references about a student on a school group or chat
- Sexual bullying, online or off
- A student shares sexual items at school
- A student grabs a student’s bottom, thigh or body part
- Sexual leering or vulgar gestures
- Unwanted sexual acts
- Use your imagination…
Emergency Removals Under Title IX
Title IX allows emergency removals from school of students who are alleged to have sexually harassed another student.
Federal law (the Code of Federal Regulations, 34 CFR 106.44(c)), describes when an emergency removal of a student may occur under Title IX. The law states:
Nothing … precludes [prevents] a recipient [school or school district that receives federal funds] from removing a respondent [student complained about under Title IX] from the recipient’s education program or activity on an emergency basis, provided that the recipient undertakes an individualized safety and risk analysis, determines that an immediate threat to the physical health or safety of any student or other individual arising from the allegations of sexual harassment justifies removal, and provides the respondent with notice and an opportunity to challenge the decision immediately following the removal. This provision may not be construed to modify any rights under the Individuals with Disabilities Education Act, Section 504 of the Rehabilitation Act of 1973, or the Americans with Disabilities Act.
So, per this section, the requirements for an emergency Title IX student removal from school are:
- Allegation of sexual harassment
- Individual safety and risk analysis
- Determination an immediate threat to physical safety exists
- From the alleged sexual harassment
- Which justifies the student’s removal
- Notice of decision to accused student
- Opportunity for accused student to challenge the emergency removal immediately after
- Disability rights of accused student remain
How Long Can a Student Be Kept Out of School Under Title IX?
Students may be moved to a different school or into independent study while being investigated under Title IX due to an emergency removal.
It is unclear how long a public school student may be kept out of their school during a Title IX emergency removal, but at least until the Title IX investigation process and appeals conclude, unless a negotiated agreement is reached.
Whether the student is then allowed to return to their school may then depend on the investigation findings were “innocent.”
If not, AFTER the Title IX process is concluded, the delayed California discipline process (e.g. school suspension and expulsion) may start. Of course, schools will then have a thick Title IX report to support their discipline actions.
A student conceivably could be out of their school many months on an emergency removal waiting for a Title IX plus school expulsion process to conclude. This may be great for the accuser and terrible for the accused.
Lawyer for students, Michelle Ball, assists students facing Title IX allegations. As an attorney in Sacramento, California, she can potentially assist throughout the state, in Santa Monica, Loomis, Vallejo, Sonora, and many other California locales.