What’s the Difference in the Title IX Process Between Private and Public Schools?

By: Ben North 

Whether a school is public or private, on its own, has no bearing on the jurisdiction of Title IX. Title IX cases can occur at any public or private academic institution that receives funding from the federal government, including both universities and K-12 schools. So, if you’re reading this and already a party to a Title IX case, you likely do not need to worry or consider whether the school has jurisdiction under Title IX; if the school was not subject to Title IX, it would likely not enforce a Title IX policy.  

DIFFERENT SCHOOLS CONDUCT TITLE IX INVESTIGATIONS IN DIFFERENT WAYS

Although the public-private distinction is not necessarily important in terms of jurisdiction, the distinction is worthy of discussion in two major respects: (1) if the case is not resolved in your favor at the school level, the causes of action you may have against a private school may be different from a public school, and relatedly (2) whether procedural due process rights have been recognized in your federal circuit, which may help you in your case at the school level. How schools conduct Title IX cases depends on how they can be sued, thus it makes sense to discuss the causes of action prior to the effect that the causes of action have on the school process.  

The distinction between public and private schools is big when it comes to how you can sue them. Public schools, as arms of state government (and in rare military cases, federal government), are subject to the United States Constitution and any State Constitution. However, private schools are not subject to federal or state constitutions. Private schools are typically only constrained by state statutes, and their own policies insofar as courts interpret the policies as contracts by the common law. Strictly speaking, the implication of the public-private distinction on “due process” is that it only applies in the public-school context. This means there can be no violation of constitutional due process in the private school context. On the other hand, public universities and their employees typically enjoy legal immunity from the kinds of causes of action that might be brought against a private university, including negligence.  

This distinction matters in terms of due process due to the recognition of some federal appeals courts that certain constitutional due process rights apply in the public school context, overriding any conflicting school policy or state statute. For example, in Doe v. Baum, 903 F.3d 575, 582-585 (6th Cir. 2018), the Sixth Circuit (which oversees Kentucky, Michigan, Ohio, and Tennessee) recognized a public university student’s constitutional right to live adversarial cross-examination. To take another example, in Haidak v. Univ. of Massachusetts-Amherst, 933 F.3d 56, 69 (1st Cir. 2019), the First Circuit (which oversees Maine, Massachusetts, Puerto Rico, Rhode Island, and New Hampshire) recognized a public university student’s constitutional right to questioning by a hearing panel, effectively outlawing a “single investigator model” for public universities in the Circuit. However, these rights do not exist in the private school context. Were there to be an absence of any federal regulatory right to cross-examination or questioning by a hearing panel, students could see a massive difference in their rights between public and private schools in the First and Sixth Circuits.  

These differences could become extremely important for students should the Biden Administration’s proposed federal regulations take effect, causing college experiences to vary significantly between public and private schools. For the time being, and for the future, the experienced Title IX attorneys at Binnall Law Group will be there to defend your rights. Please reach out for a free consultation today.  

GET HELP FROM A TITLE IX DEFENSE ATTORNEY

When you work with a dedicated student defense attorney at Binnall Law Group, we will navigate you through the Title IX process. To learn how we can protect your rights and your future in a Title IX defense case, contact us for a confidential consultation.