While all Minnesota colleges are governed by the current federal law and guidelines surrounding Title IX, every college brings its own set of unique challenges for attorneys. Every college has the discretion to choose their own policies and interpret the Title IX regulations in their own way. This leads to attorneys having to constantly familiarize themselves with the colleges’ Title IX policy prior to defending any case at that respective college.
Attorneys who practice in this area frequently are now aware that certain policies are informative and accurate in laying out a school’s procedure. However, there are just as many colleges whose policies might leave something to be desired from practicing attorneys looking to plan a defense. While practicing, 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.
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, attorneys must collaborate with their student client in drafting communications between student and 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.
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.
Many times, a 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 a practicing attorneys’ friend while preparing for the student interview.
School’s policies most differ in the stages post-interview. Some colleges employ a “panel” decision making process where 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. Ultimately, schools which allow for hearings give the student greater involvement and control over their case. Preparation for any hearing is very similar to the interview process. However, practicing attorneys should determine whether the student may be subject to cross examination. While this is rare, it is also not unheard of.
In summary, any practicing attorney should read the specific policy manual for the college they are defending at. Seek to determine the limits of communication with the school immediately, and finally, start preparing your client for the interview by familiarizing them with the specific policy definitions which are relevant in their case. This preparation will also serve useful if the student is afforded a hearing later in the process.