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How and Why Are Title IX Proceedings Biased Against Accused Students?

Title IX By Harvey Binnall PLLC - 2020/03/03 at 12:53pm

Experienced Title IX Attorney in the DC Metro Area

If you are a student who has been accused of (and are being investigated for) sexual misconduct under Title IX, then you may be feeling overwhelmed by the process — and rightfully so.  The academic, social, and career ramifications can be quite drastic, including potential expulsion from your educational institution.  Perhaps worse, there are few protections in place to ensure that the accused is given a “fair shake” during the Title IX process.

Legal and Financial Pressures Imposed on Schools Under Title IX

Title IX was passed in 1972 as part of an effort to ensure that educational programs provided equal right of access to men and women.  Over the years, it has expanded, and now includes a requirement that schools receiving federal funding (e.g. most public and private schools in the United States) investigate and “resolve” sexual misconduct accusations using whatever internal process has been put in place.

Schools face significant pressure as a result of both Title IX and — as of late — the flurry of media attention that has been given to sexual misconduct issues.  Through Title IX, a school that fails to investigate and “hunt down” an accused student could lose out on all of its federal funding.  It may also be liable to the complainant for failing to do so.

Title IX proceedings have developed such that schools must conduct comprehensive and extensive investigations, which may include interviewing witnesses, gathering evidence, and providing a tribunal and other internal review processes.

Title IX Proceedings Are “Flimsy” By Design

Given the pressures that schools face under Title IX — in conjunction with changing social mores — they are incentivized to punish the accused, even when the evidence doesn’t completely “add up.”  As failure to investigate the claim and resolve it (in a way that purportedly secures the complainant’s rights) could lead to an adverse federal funding outcome for the school, the school almost always biases its process towards the complainant and gives minimal protections to the accused.

For example, schools are under no obligation to grant accused students the same due process rights that are owed to the accused in a criminal case — and they often choose not to grant such rights.

The school may:

  • Choose to set narrow limitations on admissible evidence
  • Prohibit cross-examination of the complainant
  • Engage a process without a hearing or appeals
  • Skirt notice requirements
  • Refuse to allow the defense attorney to speak on behalf of the student
  • Operate on a reduced standard of proof (i.e., preponderance of the evidence)
  • And more

Relatedly, schools may assign a Title IX specialist — an administrator — to make the determination on whether the accused committed the sexual misconduct at-issue.  This is quite unfair, as the Title IX specialist does not have to act in furtherance of the interests of the accused.  There is no such requirement.

Instead, a decision will likely be made for strategic reasons, so long as they can support the decision with bare minimum evidence.

Contact Harvey & Binnall, PLLC for Defense Assistance

Here at Harvey & Binnall, PLLC, our attorneys have decades of experience defending students who have been accused of sexual misconduct under Title IX.  We understand the impact that a Title IX accusation — let alone a negative result in such proceedings — can have on a student’s academic, social, and career outcomes.  It is our sincere belief that the system as currently-constructed does not provide justice to the accused, and we are committed to ensuring that they receive the relentless defense assistance they need to fight back.

We work closely with our accused clients through every step of the process, from the initial investigation to hearings.  Though most schools do not allow attorneys to speak on behalf of students in Title IX proceedings, it is critical to have an experienced attorney by your side.  An attorney will help you identify what information to disclose — and how to disclose it — which will not only maximize your chances in the Title IX proceedings, but will also secure you in the event of subsequent criminal litigation.

Call us at 703-888-1943 or complete an online intake form to schedule a consultation with a skilled Title IX attorney at our firm.