Minnesota colleges are aggressive in pursuing discipline through Title IX proceedings following allegations of sexual assault, harassment, relationship violence, and stalking by students and faculty. Fueled by federal funding, most post-secondary education institutions now employ divisions dedicated to investigating policy violations and meting out punishment.
At the forefront is the University of Minnesota, with two bodies responsible for enforcement: The Office of Equal Opportunity and Affirmative Action (EOAA), currently comprised of nine lawyers in addition to staff; and the Sexual Misconduct Hearings Committee (SMHC), comprised of university members who serve as panelists for hearings. The Minnesota Intercollegiate Athletic Conference (MIAC) colleges and other universities have similarly developed offices for policy enforcement.
Title IX proceedings are internal educational disciplinary proceedings. Allegations are often criminal (criminal sexual conduct, harassment, assault), but the proceedings concern education- or employment-related discipline and the presumption of non-responsibility is overcome by a lower evidentiary burden than proof beyond a reasonable doubt.
For accused students and professors, stakes are high. Students found “responsible” for a policy violation can be expelled and suffer a permanent educational black mark. Faculty and staff can be terminated. Proceedings often also run concurrently with a criminal investigation.
Despite the stakes, this area of Title IX is in its infancy and proceedings vary dramatically between colleges. Despite 34 C.F.R. § 106.45(b)(6)(i), our firm handled a Title IX proceeding at a college that still did not afford the accused student a hearing. Generally, however, they begin with a report by a complainant, formalized by notice to the respondent of the alleged violation. What can amount to a lengthy investigation phase follows and the parties and witnesses may be interviewed while the investigating body sifts through evidence. The parties are then afforded a hearing, but it’s not the hearing you may imagine.
Neither party is required to appear. Witnesses cannot be compelled to attend. Hearsay is sometimes explicitly permitted, and confrontation—considered as it would be in criminal court—has far duller teeth. See Victim Rights Law Ctr. v. Cardona, 552 F. Supp. 3d 104 (D. Mass. 2021) (striking from 34 C.F.R. § 106.45(b)(6)(i) as arbitrary and capricious a provision that, if a party fails to appear at the hearing “the decision-maker(s) must not rely on any statement of that party or witness in reaching a determination regarding responsibility . . . .”).
Although a policy identifies a standard of proof, it does not mean that it will be correctly applied. For example, a student at Macalester College was found responsible for what would be a felony sex crime and hired our firm to appeal the determination. On appeal, the finding was vacated because the adjudicator had explicitly engaged in burden-shifting (“[Student] failed to prove that he did not engage in the alleged conduct.”).
Significant attention is afforded to the hearings, and they are a critical portion of Title IX defense. In my experience, however, these cases are positioned for success during investigation, similar to pre-trial motion practice. Ambiguity and recent changes in Title IX have left the door open for creativity in crafting an effective defense, and that ambiguity can be wielded to the significant benefit of your clients.
