The possible risks to which college students are exposed extend into almost every aspect of higher education. Between housing contracts, codes of conduct, academic expectations, and Title IX, there are plenty of ways for students to break rules.
Although many colleges and universities [hereinafter “schools”] must adhere to general laws and guidance when disciplining students, details of governance are largely left in the hands of individual schools. This means that each school will have unique policies and procedures. One responsibility of lawyers is to help clients navigate these varied and evolving environments. Below is an overview of what to understand when a student faces potential school discipline and, in particular, the consequences that might attach to the outcome of disciplinary proceedings and Title IX investigations.
Title IX: Issues Presented Both Within Educational Institutions and Beyond the Dean’s Office
“No person shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving federal financial assistance.”1
Although many people are familiar with the language of Title IX of the Education Amendments of 1972, they might not understand how Title IX operates. First, it is important to understand that Title IX only applies to schools, educational agencies, and other institutions and programs that receive federal financial assistance from the Department of Education. Title IX also can apply to local school districts, primary schools, and faculty and staff of schools at all levels.
Title IX does not apply to the following: private institutions; educational institutions controlled by a religious organization to the extent Title IX would be inconsistent; educational institutions with the primary purpose of training individuals for military service; membership practices of social sororities and fraternities; the YMCA, YWCA, Girl Scouts, Boy Scouts, Campfire Girls, and voluntary youth service organizations; and any program or activity of the American Legion. It is easy to make the mistake of assuming Title IX applies universally, but its protections are only afforded to programs that receive federal financial assistance.
It is important to keep in mind that Title IX can apply piecemeal to institutions or organizations. For example, while Title IX does not apply to membership practices of fraternities, it could apply to a fraternity philanthropy event if the fraternity receives any federal financial assistance for the philanthropy program. And although Title IX does not apply generally to private institutions, it could apply to a nursing program within the private institution that receives federal financial assistance. Essentially, Title IX can apply to all, some, or none of the activities of a school, agency, program, or institution.
Many people associate Title IX mostly with mandated equal opportunities for men and women to participate in school-sponsored athletics. While this remains the most prominent aspect of Title IX, recently there has been an exponential increase in sexual harassment investigations and litigation. Under Title IX, sexual harassment is defined to include:
Unlike other legal sources of school discipline, Title IX is surrounded by a reasonable amount of federal regulations and guidance. However, given the implementation but later revocation of the 2011 Dear Colleague Letter2 and the recent implementation of the final rule,3 the rules seem to regularly change. As of spring 2022, it appears the final rule is here for the foreseeable future.
The final rule states that any Title IX-governed institution with actual knowledge of sexual harassment that is occurring in the school’s education program or activity and that is against any person in the country must promptly respond in a manner that is not deliberately indifferent. Per the final rule, this includes providing certain support services to all complainants and a duty to fully investigate every formal complaint.
The final rule also specifies due-process safeguards for Title IX investigations. While far from perfect, the final rule at least recognizes that parties deserve to be treated fairly and provided with certain protections. These minimal protections include written notice of the allegations and the opportunity to have an advisor present during the investigation and hearing process. Certainly, there is still work to do in providing full due process to respondents, but the final rule is a step in the right direction.
The fact finder in a Title IX investigation will ultimately decide if the accused is responsible or not responsible for a Title IX violation. If the school finds the student responsible under Title IX, the school can discipline the student in a variety of ways. However, if the allegations are serious, a finding of responsibility most likely will result in the student being expelled. Even if the student decides to withdraw before a finding of responsibility, the school will likely indicate on the student’s transcript that the student withdrew amid a Title IX investigation, and this negative notation on the student’s records probably will hinder students who seek to be accepted to another institution.
Similar to other school disciplinary procedures, a school will have a Title IX appeals process. Sometimes, the administrative appeals process is not enough, and the issue must be brought to the Office for Civil Rights, a district court, or both.
Penalties Beyond a School
Lawyers might be able to help students facing school-related discipline. The first step should be to determine which individuals and entities are involved. If a college student is facing criminal charges, the lawyer should determine whether the school is involved yet. Conversely, if a client is facing disciplinary matters at school, the lawyer must find out whether a law enforcement agency has been contacted. As a general rule, criminal charges will almost always affect the client’s standing in school, but discipline at school will not always result in criminal charges.
Criminal charges are not reserved only for students accused of Title IX violations but can also be imposed on students for violations of housing contracts and codes of conduct. For example, an 18 year old caught consuming alcohol in a residence hall and ordering fake identifications for friends might be charged with both underage consumption of alcohol (a civil forfeiture) and providing an identification to an underage person for money (a felony). A student who brings a weapon onto campus might face charges of violating state concealed-carry laws.
In situations in which there are potential criminal charges, it is imperative to be extremely careful about what, if any, statements a client makes and what, if any, admissions the client agrees to. Although a Wisconsin law prohibits deans of students and psychologists at schools from disclosing communications made to them while investigating the alleged misconduct of a student, the statute also provides several exceptions. Most notably, this prohibition does not apply if the dean or psychologist is subpoenaed to testify.4 This means that despite a student possibly being told otherwise, a student’s admissions made in a disciplinary action can be used against them in court.
While some school-related discipline can be easily explained on application forms, more severe situations send up red flags and might hinder a student’s educational and employment prospects.
While criminal charges are arguably the biggest danger outside of the classroom to students facing school-related discipline, other repercussions exist as well. To start, students might be sued civilly for their actions as well as being charged criminally. Clients may face civil liability for intentional or negligent infliction of emotional distress based on the use of racial slurs or for negligence based on actions in a residence hall.
There is a potential not only for civil liability but also for collateral consequences. Questions about past discipline might be posed on graduate-school or employment-licensure applications. While some school-related discipline can be easily explained on application forms, more severe situations send up red flags and might hinder a student’s educational and employment prospects.
Another hazard that cannot be ignored is the impact of social media. It is easy to disseminate information, whether true or false. Not only does information travel quickly, but the information might remain available forever. A Google search on an individual might return misconduct allegations from many decades ago. People accused of committing crimes, whether rightly or wrongly, face the potential of having a hashtag on Instagram named after them and the allegations against them going viral.
Staff and administrators at educational institutions are also keenly aware of the implications of social media. Schools can receive nationwide attention for employees’ actions. This attention can bring all sorts of other problems to the forefront for the schools. While the effect of social media perhaps is not a conscious influence, social media has the ability to impact both the disciplinary process and the future consequences for students.
Non-Title IX Issues
In addition to not committing a serious offense against another student, there are many pitfalls and corresponding consequences that a student must be careful to avoid while in college. One of the most common ways students get in trouble is by violating student-housing contracts. These incidents range from minor discretions, such as being disorderly in the residence hall, to incidents of underage drinking, to major violations of law such as constructing explosives in a residence hall.
Students might also find themselves in trouble if they violate the school’s academic code. Plagiarism and cheating can be one-way tickets to expulsion, and poor performance can land a student on academic probation. Finally, being found in violation of the general code of conduct can pose problems for students. Many students are not aware of the contents of the school’s conduct code until they are accused of violating it.5
If a student is accused of any of the above-mentioned violations, not all hope is lost. Schools have individualized procedures for students to challenge discipline. These procedures range from appealing orally to the appropriate faculty member to hearings in front of a disciplinary panel.
Potential punishments for students vary greatly depending on the severity of the offense and might include oral and written warnings, academic probation, disqualification from participation in extracurricular activities, suspension, expulsion, and a complete ban from being present on the school’s campus for many years in the future. Also, depending on the punishment, an appeal process might be available. Typically, appeal processes on the college level have very short deadlines and the sooner the student engages an attorney to assist them the better. A specific school’s code of conduct and related rules should be checked to determine whether that school’s students have the right to have an attorney attend a hearing with them.
Conclusion
When working with college-student clients, lawyers should focus on communicating the gravity of the clients’ situation while also seeing the consequences from the clients’ perspective. A client who is told to move to a different residence hall or asked to leave a fraternity or sorority might feel as though their world – academic, social, and so on – is collapsing. On the flip side, a student might not fully understand the implications of making statements against penal interest or how extreme the consequences of discipline could be on their future careers. It is the job of attorneys to be sensitive to clients’ concerns and at the same time advise them of all potential consequences.
Here’s the bottom line: the sooner a student reaches out to a lawyer about potential disciplinary actions at school the better. Waiting to hire a lawyer until the appeal process begins will significantly hinder the student’s chances of remaining in school, and an attorney can help the student navigate the often-changing rules surrounding Title IX and other disciplinary matters.
Meet Our Contributors
What is your favorite place in Wisconsin?
My favorite place in Wisconsin would have to be the tennis courts I grew up at in Madison. If you play tennis, you know there is nothing that quite compares to the crack of a new can of balls on a fall day. Not only are the courts a place where I made lifelong friends and spent countless hours goofing around with my family, but also they are a place where I learned important life lessons that still serve me to this day. I quickly learned that it is impossible to win every point, but real growth comes from what you do in the aftermath of a loss. I also learned how to work and succeed both individually and as a team member, which has aided me immensely in my legal career. Regardless of the size of your firm, you can be an asset as first, second, or even third chair. On the tennis courts, I learned that sometimes what’s best for the team means playing a supporting role and not necessarily being the star of the show.
Brianna J. Meyer, Gimbel Reilly Guerin & Brown LLP, Milwaukee.
Become a contributor! Are you working on an interesting case? Have a practice tip to share? There are several ways to contribute to Wisconsin Lawyer. To discuss a topic idea, contact Managing Editor Karlé Lester at (800) 444-9404, ext. 6127, or email klester@wisbar.org. Check out our writing and submission guidelines.
Endnotes
1 Title IX of the Education Amendments Act of 1972, 20 U.S.C. § 1681.
2 U.S. Dep’t of Educ., Off. of Assistant Secretary, Dear Colleague Letter (April 4, 2011) (rescinded), www2.ed.gov/about/offices/list/ocr/letters/colleague-201104.html.
3 34 C.F.R. pt. 106, Nondiscrimination on the Basis of Sex in Education Programs or Activities Receiving Federal Financial Assistance.
4 Wis. Stat. § 885.205.
5 A school’s code of conduct might appear on a page such as this: U.W.-Madison, Office of Student Conduct and Community Standards, https://conduct.students.wisc.edu/ (last visited April 7, 2022).
» Cite this article: 95 Wis. Law. 28-30 (May 2022).
