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.
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.
The Policies Governing Title IX
While all colleges are governed by the current federal law and guidelines surrounding Title IX, every college brings its own set of unique challenges. Every college has the discretion to choose their own policies and interpret the Title IX regulations in their own way. Review the college’s Title IX policy prior to defending any case.
As an attorney who practices in this area frequently, I know that certain policies are informative and accurately lay out a school’s procedure. However, there are just as many colleges whose policies might leave something to be desired. I have dealt with college policies where I have been able to predict every step of the procedure solely through reading the school’s procedures. For every accurate policy manual, I have dealt with, there is a college that left me guessing throughout the entire process.
Attorney Communication
One of the first policy questions to answer is whether the school allows direct communication from the attorney. Many schools will have some limit on an attorney’s ability to write or call the college directly. In these instances, students must collaborate with their attorney in drafting communications to the school. This cumbersome and inefficient process is far from ideal, and it is always wise to ask the Title IX coordinator whether the attorney can have direct contact with the college. Title IX coordinators are the ultimate authority on the rules and often will have a softened approach in interpreting whatever the school’s policy says on communications.
The Interview
Once communication is established with the school, the typical next step is for the student to sit down for an interview with the school’s investigator. Preparation for this interview is the most important part of any Title IX defense.
While the student may be asked to participate in a second follow-up interview, this initial interview is where the bulk of “their story” will be communicated to the school. While preparing for this interview it is always important to keep in mind the allegations the student is facing and how the college defines those allegations. A competent Title IX investigator will strictly follow the definitions given to them in the policy manual.
Often, the student will have a strong memory of the incident but will find it difficult to coherently retell this story while incorporating all necessary details. Some interviewers will simply ask the student to tell their side of the story with very little follow-up questions. This means students must be prepared to confidently say their version of events without any prompting. Students must be aware as to what the important definitions apply to their case.
I believe cases are lost where the student is uneducated as to why certain specifics are so necessary to their defense. While every case is different, the policy definitions at play in any Title IX case are essential while preparing for the student interview.
The Post-Interview Stage
School’s policies most differ in the stages post-interview. Some colleges employ a “panel” decision making process in which select individuals from the college make a group decision as to whether the investigation provided evidence of a policy violation. This panel may also decide any punishment. Some schools hold a hearing before any decision is made. Some afford the student an opportunity to have a hearing after they have already been found responsible for a violation.
The Report, Review & Response
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 the student’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.
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 student’s defense in writing. While this option appears to be somewhat rare, 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.
A Hearing
Perhaps the greatest process available to students is the right to a hearing after the investigation brings a finding of a conduct code violation. Preparation for any hearing is very similar to the interview process. However, be sure to determine whether the student may be subject to cross examination. While this is rare, it is also not unheard of.
Not all colleges offer this option. 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 State 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.
Appeal
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.
