Maine Title IX Sexual Harassment Frequently Asked Questions

Table of Contents

1. What is title IX?
2. What types of sex-based discrimination does Title IX cover?
3. Who does Title IX protect in Maine?
4. What is “sexual misconduct” in Title IX?
5. What is the difference between “sexual assault” and “sexual harassment”?
6. What must schools in Maine do to comply with Title IX?
7. How can Title IX complaints be made in schools in Maine?
8. What constitutes a “prompt and equitable” process for schools?
9. What standard of evidence is used at complaint hearings?
10. What does “affirmative consent” mean regarding title IX?
11. Do alcohol and drug use affect consent regarding title IX?
12. Is there mandatory reporting for college employees under Title IX?
13. What should I do if I’m informed that a student has filed a complaint against me for sexual assault?

What is Title IX?

Title IX is a federal civil rights law that dates back to the 1970s but it has seen more attention in recent years as the topic of sexual harassment and sexual misconduct has become more prominent.

The law makes it illegal for gender-based discrimination to be committed in education – by or against students, staff, or faculty in all federally funded institutions. It also prohibits retaliation against anyone who reports it.

Most educational establishments across the state of Maine must abide by this legislation, including schools, colleges and universities.

What types of sex-based discrimination does Title IX cover?

There are five main areas of sex-based discrimination covered by Title IX legislation. These include actions that may result in either criminal penalties or civil action – or both:

1.     Sexual harassment and assault

Schools have a duty of care to provide a safe environment for their people and every person in the U.S. has the right to an education.

Victims of sexual harassment or assault may not be able to participate freely in educational programs, hindering their right to an education. As such, it is illegal to sexually harass or assault any student (or school employee) under Title IX.

2.     Retaliation against complainants or whistleblowers

If an individual within an educational establishment in Maine reports an instance of sexual discrimination or harassment or asserts their Title IX rights, retaliation against that individual is illegal.

This protects students, teachers and other school employees from “whistleblower” retaliation and in theory, at least, encourages people to step forward.

3.     Sexual discrimination in athletics

School athletics programs are one of the highest-profile areas where Title IX protections frequently come into play.

Schools must treat boys and girls equally and without discrimination in terms of participation opportunities, athletic scholarships, and treatment of teams in athletics programs.

Borth genders must have equal access to scholarships and facilities, as well as equipment, uniforms, travel funding, scheduling of practice, housing, and other athletics-related matters.

4.     Discrimination against pregnant women

Under Title IX, schools must provide all students who have been pregnant (or might be currently) equal access to school programs and extracurricular activities as other students have.

It forbids penalizing a student who must miss time at school for pregnancy-related matters and can show doctor’s reports. The student must be provided with an opportunity to catch up on any missed schoolwork.

5.     Sexual orientation/gender identity discrimination

Title IX also protects LGBT or gender nonconforming students and employees from discrimination in schools.

These laws protect a person’s right to choose their sexual orientation and gender identity without prejudice or discrimination. Schools must take steps to stamp out any bullying or harassment related to this issue and provide equal access to educational opportunities.

Who does Title IX protect in Maine?

All students and employees of educational institutions that receive federal funds in the U.S. are covered by the provisions of the Title IX legislation, regardless of citizenship status.

It is highly likely that if you or your son or daughter attends a school in Maine, you/they are covered by Title IX.

What is “sexual misconduct” in Title IX?

“Sexual misconduct” includes sexual discrimination, sexual harassment, sexual assault, and so on. This is considered gender-based discrimination under Title IX.

What is the difference between “sexual assault” and “sexual harassment”?

Under Title IX, sexual assault and sexual harassment are both considered types of gender discrimination.

Sexual assault is sexual contact that is coerced, forced, non-consensual or occurs when a person is not able to give consent.

Sexual harassment is unwelcome sexual behavior aimed at an individual. This can be verbal requests, gestures or physical acts.

What must schools in Maine do to comply with Title IX?

Schools in Maine must clearly communicate policies regarding sexual harassment and sexual assault to students and employees.

Furthermore, they have certain obligations to deal with cases of sexual harassment that occur on school grounds, school transport, or in school programs off-campus. Notably, schools must follow a “prompt and equitable” grievance and disciplinary process.

Complaints must be investigated fairly and it should be quickly determined whether a “hostile environment” has been created for the plaintiff, i.e., whether they are unable to participate fully in the school’s educational services due to the alleged sexual harassment.

Prompt measures must be taken to end the misconduct and to prevent it from recurring. This may include imposing contact restrictions and/or placing the accused on leave of absence.

Just as importantly, the school must eliminate the “hostile environment” faced by the plaintiff, providing access to a campus counselor or other health professionals, work and class schedule modifications, and increased security if necessary.

How can Title IX complaints be made in schools in Maine?

Schools must designate a person to act as the Title IX coordinator and all complaints can be channeled through this individual.

Sexual misconduct or harassment complaints may be made by the victim or by a whistleblower who has witnessed the misconduct.

Every complaint must be followed up with an investigation. Once this begins, the alleged perpetrator must be notified of the allegations brought against him or her, including the identities of the parties involved and details of the alleged violation, along with the date/time of a hearing.

What constitutes a “prompt and equitable” process for schools?

The Office for Civil Rights (OCR) provides the following guidelines to help schools initiate grievance and disciplinary processes that are “prompt and equitable” in compliance with Title IX:

• The school details its grievance procedures to students, parents, and employees and provides access to every individual with a clear explanation for how to file a complaint with the Title IX coordinator, etc.
• The school responds to complaints filed by students accusing fellow students, college employees or third parties of sexual misconduct.
• The school conducts an impartial and reliable investigation, providing both parties with the opportunity to present their case.
• The school completes the complaint response process in a reasonable timeframe.
• The school notifies all parties of the outcome of the investigation and eliminates the sexual misconduct, taking all possible steps to prevent a recurrence.

What standard of evidence is used at complaint hearings?

There is no hard and fast rule for which standard of evidence is used in school sexual harassment cases in Maine. According to Title IX, schools can apply either:

• The preponderance of evidence standard: the facts and the accuser’s account of the alleged sexual misconduct are more likely than not to be true.
• The clear and convincing evidence standard: additional evidence is required than in “more likely than not” cases but less than “beyond a reasonable doubt” used in criminal cases.)

Note, however, that the same standard must apply in Title IX cases as that used in other student code of conduct violation cases within the school.

What does “affirmative consent” mean regarding title IX?

“Affirmative consent” is where there is a conscious decision from each party to engage in sexual activity.

For sexual activity to be considered consensual, affirmative consent must be communicated through comprehensible words and/or actions by all parties involved.

Do alcohol and drug use affect consent regarding title IX?

Consent may be invalidated if intoxication from alcohol or drugs to the point of incapacitation can be shown because rational judgements are deemed impossible in such a condition.

There is no set alcohol or drug limit for these cases so the level of intoxication must be determined by the school’s investigation and is open to interpretation.

Is there mandatory reporting for college employees under Title IX?

Mandatory reporting requirements exist for college employees under Title IX. This means that any employee who witnesses sexual misconduct of any kind must report it to the Title IX coordinator.

The rules apply to professors, faculty, staff, graduate assistants, teaching assistants, and other “responsible employees”.

What should I do if I’m informed that a student has filed a complaint against me for sexual assault?

You must immediately seek legal counsel.

Some schools will cover the initial costs of consulting with an attorney, whether you’re the plaintiff or the person accused of committing the sexual assault.  Many schools also maintain a list of recommended attorneys that they believe have the necessary qualifications to represent their students.  However, very few, if any schools, will cover the entirety of the legal fees generated in connection with filing the complaint or defending against the allegation.

If you’ve been accused of a sexual assault by another student, you should seek the services of a qualified Title IX defense attorney.  Some of the consequences that could flow from a formal finding by the school include:

• Referral of the case to the local police department or District Attorney for further investigation and criminal prosecution;
• Permanent removal and ban from campus;
• A refusal by the school to confer your degree, which means it’s like you never attended college;
• A notation in your file that can follow you to your next school and be a part of your permanent educational record for a period of time;
• Liability for a civil lawsuit and money damages by the complaining party;
• Permanent damage to your name and reputation.

There are other possible unforeseen consequences that may present themselves if you fail to defend against the complaint.  And while there are procedures in place to ensure both parties are treated fairly, with so much to lose, it would be short-sighted to go through this process naked and without legal representation.