Title IX: When is “Neutrality” Actually Deliberate Indifference?

Is your school truly neutral when investigating sexual misconduct claims under Title IX?

@lauraldunnjd

Schools are not being neutral if they refuse to keep #survivors safe during pending #TitleIX investigations into sexual assault, harassmebt, violence, or related misconduct

♬ original sound – LauraLDunnJD

Neutrality is critical during the Title IX grievance process to ensure a fair investigation and resolution. However, when neutrality becomes deliberate indifference, a school actually violates Title IX. Title IX is a federal civil rights law prohibiting sex discrimination, sexual harassment, and sexual violence in educational settings. Schools often cross from neutral to deliberately indifferent when they fail to keep survivors and witnesses safe during pending grievance proceedings.

How can you know the difference between neutrality and deliberate indifference in Title IX cases? Let’s break it down:

Neutrality:

  • Fair Investigation: Ideally, when allegations of sexual misconduct arise, schools should approach the investigation with an unbiased mindset. Both the respondent (the person accused) and the complainant (reported victim) deserve a fair opportunity to present their claims and evidence to a neutral factfinder.
  • Equal Opportunity: Neutrality means ensuring each party involved has equal access to resources and support throughout the investigation process, including access to confidential advisors, counseling services, and academic accommodations. The parties should also have equal opportunity to identify potential witnesses, submit evidence, and be interviewed by the investigator(s).
  • Presumed Not-Response: During an investigation, respondents are considered “not responsible” until proven otherwise through the grievance process. The school cannot pre-judge or draw conclusions before the investigation is complete, but that does not limit the school’s inherent authority to ensure the safety of the complainant and witnesses involved in this grievance process.

Deliberate Indifference:

  • Ignoring Complaints: Schools are not neutral if they choose to ignore or minimize reports of sexual misconduct. Any failure to take a complaint, or investigate while taking appropriate interim action, such as safety measures or academic accommodations, may constitute deliberate indifference.
  • Unreasonable Response: Even with ongoing investigations, schools have a responsibility to create a safe learning environment for all students, especially the complainant. Deliberately indifferent schools might fail to offer or properly implement measures that protect survivors and minimize interaction with the respondent pending the outcome of the grievance process.
  • Lack of Support: Denying victims access to supportive resources like medical care, counseling, reasonable safety measures, or academic accommodations during the ongoing investigation may demonstrate deliberate indifference.

Schools have a legal obligation under Title IX to ensure a safe and equal learning environment for all students, even when investigating sexual misconduct. Indifference that creates an unsafe environment for survivors or does not ensure they have equal access while waiting for the outcome of the Title IX grievance process risks perpetuating a hostile environment in violation of federal law.

If you need help making sure your school is safe, please reach out and get support today

Contact Me

(646) 898-2006