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What to Expect in a Title IX Proceeding

A Guide to Help Students and Parents with Title IX Proceedings

If you are a student who has been accused of sexual misconduct, or a family member whose younger loved one is now standing at the epicenter of an ongoing media and academic firestorm for alleged sexual misconduct, then you should be prepared for Title IX proceedings in the form of an investigation and, potentially, a hearing.

Though the prospect of a Title IX investigation might be frightening, it is important to understand that all is not lost simply because you are being targeted for the purposes of the investigation.  You will have an opportunity to present your case.  While schools often take steps to favor the accuser as opposed to the accused, you are entitled to challenge such inequities with the assistance of a qualified attorney.

Title IX proceedings can lead to significant penalties, as well as a lifelong association with the sexual misconduct at issue.  As such, the stakes are rather high. If you “win,” you will not only avoid the direct academic penalties, but you will be better equipped to move forward with your life uninhibited by the negative connotation created by the sexual misconduct allegations.

Basic Rights of the Accused

Title IX proceedings are generally associated with limited rights (with respect to the student accused of sexual misconduct), and for good reason. Unlike formal civil and criminal proceedings, the accused student may not be given an opportunity to comprehensively present their relevant evidence, a right to appeal the decision might not be granted and he or she may not have access to direct legal representation during the hearing (though they are entitled to the assistance and presence of an advisor who is typically an attorney).

Though limited, the rights that are provided to a student under Title IX are valuable to preserving what little fairness there is in the investigative process and, as such, must be protected through relentless advocacy.

So, what is an accused student entitled to?

Under Title IX, the school must conduct an adequate, reliable, prompt and impartial investigation into the sexual misconduct complaints at issue.  As these concepts are rather broad in scope, it can be difficult to evaluate individual violations; however, consider this simple example for clarity.

Suppose that you are accused of having engaged in sexual misconduct with another student while at a school-sponsored event.  The school launches a Title IX investigation.  Eventually, a hearing is held regarding the underlying allegations.  The school allows the accuser to introduce witness testimony regarding the behavior that you engaged in on the night in question.  However, the school prevents you from cross-examining the witness.  This sort of procedural decision would likely constitute “partiality” that violates the right to fairness granted to both parties under Title IX. Additionally, in many instances, it may also violate the accused student’s due process rights.

Understanding the Title IX Investigation

Title IX requires that schools invest resources towards investigating all sexual misconduct allegations, even if the allegation is viewed as unlikely or particularly unbelievable under the circumstances.  Even so-called outrageous allegations will be investigated, as the school could potentially lose their federal funding and be subject to civil and criminal penalties should they not follow the necessary procedures.

As the investigation and disciplinary process begins, however, you — the accused student (and his or her family members) — may not quite understand what you are going to experience.  Below is a brief synopsis of just a few of the confusing aspects of a Title IX investigation.

As an initial matter, it is worth noting that schools differ significantly in terms of how they investigate Title IX sexual misconduct allegations.  Not all schools provide students with their right to a hearing, for example, or even allow the parties to appeal the decision that their investigators ultimately reach.  This can have an enormously negative impact on the ability of the accused student to persuasively present their case, and it can lead to decisions that may have been arrived at on the basis of public pressure rather than fundamental fairness.  In fact, these — and other procedural concerns — point to the value of a qualified Title IX defense attorney.  Your attorney will provide guidance throughout the proceedings and will ensure that your rights are not violated through an improper or incomplete investigation.

The investigation should not take longer than two months.  If the investigation is not completed within that time period, you may be able to challenge the school’s handling of the Title IX investigation as untimely and violative of the “promptness” requirement.  Lengthy investigations are quite damaging to your position as the accused student, as witness testimony and records may be less accurate as time goes on. Despite the threat of inaccuracy, investigators favoring the accuser might then allow such testimony to be introduced, thus skewing the evidence against you.

Over the course of the investigation, you may not necessarily have access to an attorney in the traditional sense.  Simply put, the school may forbid each party from having an attorney directly represent them and speak on their behalf.  Instead, the school may allow each party to have an advisor present at all times (for investigation and hearings). The advisor is not necessarily empowered to speak on behalf of the student, but he or she can provide guidance on various issues as the process goes on.

When determining guilt through the requisite investigative/hearing procedures, schools often utilize a standard of proof known as a “preponderance of the evidence,” which means that it is more likely than not that the accused committed the underlying sexual misconduct.

Schools divvy up the decision-making power in various different ways by creating a tribunal, a panel of representatives, or even selecting a single member of the staff, sometimes known as a Title IX specialist.  The Title IX specialist serves as an investigator as well as the ultimate decision-maker with respect to whether the accused is guilty and what penalties to which they will be subjected.  While this approach has been criticized by the Department of Education and has been prohibited by several courts, some schools still utilize the system, often referred to as the single investigator model.

Parties to a Title IX investigation are often under the impression that an adjacent criminal investigation will stall or otherwise prevent the Title IX proceedings from being resolved.  This is not the case, however.  Criminal investigations do not suspend Title IX proceedings, and schools are required to continue promptly and unabated.

What if the School Gets it Wrong? Seek Legal Counsel as Early as Possible

Getting an experienced Title IX attorney involved early in the process can help accused students overcome at the school’s tribunal. Sometimes, however, the pressure on school officials proves to be too much and an accused student is denied a fair process. In those cases, an experienced Title IX litigator can move the fight into the court system by suing the school for violating the student’s rights under Title IX, the United States Constitution, or under other legal theories. Harvey & Binnall is proud to have helped vindicate students by filing and vigorously prosecuting such lawsuits.