‘Post-Investigation’ Procedures for Defending Title IX Proceedings on MN College Campuses

We previously discussed challenges attorneys face representing students during the investigation phase of Title IX cases. This article will discuss what to expect after an investigation has concluded. The processes discussed below are governed by the current federal law and guidelines surrounding Title IX, but colleges vary significantly with what procedures they implement after an investigation has closed.

Once a college has finished their investigation a student will typically receive some type of report summarizing the findings. Certain colleges allow for a review and response period where the student can review the investigation and correct or dispute inaccurate information contained within. This step, if allowed, is crucial to not only ensuring the report is accurate but also to ensure your client’s theory of defense is being presented correctly to the college. I have repeatedly used this procedure to instruct the college on not only the underlying facts of my client’s version of events but also shape credibility arguments along with weak evidentiary within the investigation file.

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Some colleges allow students to submit a complete “defense” in writing after conclusion of the investigation. This is the opportunity for attorneys to submit the nuances of the client’s defense in writing. While this option appears to be somewhat rare within Minnesota universities, it is not fully unheard of and is a large advantage to students when allowed. Many colleges spend a great deal of resources focusing on the factual narratives of the students involved. An overreliance of the narratives of those students involved sometimes detracts from the legal standards to be applied when evaluating the narratives. Attorneys should always take advantage of this step as it may be the only opportunity to direct the fact-finder’s attention to your client’s interpretation of the standards and rules at play in their case.

Perhaps the greatest process available to students is the right to a hearing after the investigation brings a finding of a conduct code violation. Again, not all colleges offer this. For those that do offer it, the rules and procedures can vary greatly between colleges. Typically, a hearing will consist of a panel made up of university faculty, staff and/or students. The student, through their attorney, may have the right to cross-examine witnesses. They almost always will have the ability to provide testimony themselves along with presenting favorable witnesses. Sometimes the panel members will have the ability to ask questions of their own.

A hearing can be a tricky process to navigate for those attorneys who are seasoned courtroom advocates. While the rules of a Title IX hearing can mirror that of a courtroom, they are ultimately not governed by Minnesota criminal or civil procedure. I have spent many hours arguing with colleges about the potential lack of fairness with their proposed rules, to no relief. While raising arguments of fairness is always advisable, it would serve your client well to embrace the potentially unusual nature of a Title IX hearing.

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A student typically has the right to appeal any findings after exhausting all post-investigation resources. An appeal allows a student not just to contest the underlying finding of responsibility but also challenge any procedural defects which may have occurred during the case. An attorney should do their best to make a record of any potential procedure defects during the case. Typically, this is done in writing to the college’s Title IX coordinator. This will help serve any future appeal arguments. Attorneys will need to act swiftly when deciding to appeal as the timelines for filing an appeal are normally less than a week following any appealable decision from the college.

In summary, a student has many procedural avenues to pursue after the close of the investigation.  These processes typically allow a student to fully present their defense and advocate for themselves. A Title IX attorney should familiarize themselves with these post-investigation procedures and be prepared to exercise them where appropriate.

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