Under pressure from the federal government, colleges have been responding aggressively to sexual harassment and sexual assault allegations made by students against other students. Although many of the recent reforms may have been well-intended, some schools have simply gone too far by denying accused students a fair chance to defend themselves. It is situations like these where an experienced Title IX defense lawyer can help.
Background: What Is Title IX, and How Does It Apply to College Student Sexual Misconduct Allegations?
Title IX is a federal civil rights law, signed into law in 1972, that was designed to prohibit gender discrimination in educational institutions receiving federal financial assistance. In April 2011, the US Department of Education interpreted this law as giving the federal government the authority to determine the procedures used by colleges to resolve sexual assault complaints filed by one student against another.
In support of this interpretation, the Department of Education issued its “Dear Colleague” letter to over 7,000 colleges receiving federal financial assistance. The letter contained the following demands and “guidance”:
- College tribunals and investigators should apply the preponderance of evidence standard of proof (something like “more likely than not”) in sexual assault cases.
- Colleges should allow accusers to appeal “not guilty” findings.
- Proceedings should be completed within 60 days of receiving a complaint.
- Colleges should not allow accusers to be cross-examined by the accused or his representative.
The “Dear Colleague” letter was widely credited with (or blamed for, depending on your point of view) an immediate and significant increase in the number of accused students being sanctioned or expelled in response to sexual misconduct allegations. This, in turn, triggered the filing of several dozen federal lawsuits by expelled students, demanding that the schools reinstate them and clear their names. Many of these lawsuits were successful.
Trump Administration Response
The Trump administration is widely perceived to be considerably less friendly to the political climate represented by the Dear Colleague letter than the Obama administration was. In September 2017, the Department of Education released a “Q&A” designed to clarify expectations for schools receiving federal financial assistance. The Q&A softened some of the harsher elements of the “Dear Colleague” letter in the following ways, among others:
- Schools now have the discretion to raise the standard of proof above the “preponderance of the evidence” standard.
- Schools are no longer required to allow the accuser to appeal an adverse ruling.
- Schools should provide written notice to the accused and allow the accused sufficient time to prepare a defense.
The Potential Conflict of Interest
The bottom line is that, despite the softening of the draconian “Dear Colleague” letter policies, the accused enjoys far fewer rights in a university disciplinary proceeding than in a court of law. Although part of the reason for this disparity is that a university, unlike a court of law, cannot imprison an accused, more cynical reasons might be at work as well.
A student who wins a lawsuit against a university for wrongly expelling him on unsubstantiated sexual misconduct charges can demand reinstatement and perhaps a few thousand dollars in compensation. On the other hand, a student who sues the university for failing to properly respond to their sexual assault complaint might be able to demand millions of dollars from the university.
Meanwhile, a school might calculate that it is more likely to place its federal funding in jeopardy by failing to “vigorously” respond to a sexual assault complaint than by failing to provide the accused with a fair chance to defend himself. Both of these factors provide strong financial incentives for the school to err on the side of the accuser, not the accused.
College Disciplinary Procedures: Two Different Models
Colleges generally choose between the following types of disciplinary procedure models:
- The traditional model: Under the traditional model, an investigation by administration officials, campus police, or a private investigator takes place first. The accused is then entitled to a hearing, at which he can present evidence and call witnesses. The case is decided by a panel or by an individual hearing officer.
- The single investigator model: Under the single investigator model, a single individual – either a school employee or an outside party – conducts the investigation, hears the evidence, and makes the decision.
- Hybrid models: Some schools use a system that combines features of the two models listed above. For example, one person might investigate, hear evidence, and make a recommendation to a panel that then decides the case.
The US Constitution guarantees the minimum rights you are entitled to in college sexual misconduct disciplinary proceedings. Your college may grant greater rights than this, and if they guarantee them, then they are required to live up to them. The minimum rights you are entitled to, specified below, differ substantially depending on whether you are enrolled in a public school or a private school. The accused enjoys the following minimum rights:
- A speedy, fair, and impartial proceeding.
- Confidentiality in the disciplinary process. Records of the proceedings are protected by federal privacy statutes such as the Family Education Rights and Privacy Act (FERPA).
- Access to the institution’s written disciplinary policies and procedures.
- Fundamental due process, including sufficient advance notice of the proceedings and the opportunity to speak in your own defense. Only public schools are obligated to provide due process; private schools are bound by no such restrictions. Many private schools, however, do offer due process protections even though they are not required to.
- The opportunity to submit evidence and call witnesses.
- A proceedings administrator with appropriate training in handling sexual misconduct cases.
- An advisor or advocate (even a lawyer), who you select, who may be present with you throughout the proceedings, including questioning by an investigator.
- The opportunity to exercise your rights without fear of retaliation.
Limitations on Your Rights
The following is a list of some of the most formidable obstacles you are likely to encounter if you face sexual misconduct proceedings in a college setting:
- The standard of proof is likely to be low: Many institutions still apply the “preponderance of evidence” standard to sexual assault allegations. Under this standard, you will be found guilty if the totality of the evidence indicates as low as a 50.1 percent likelihood that the allegations against you are true. This can be extremely dangerous in a “he said, she said” situation.
- Mediation is disfavored: Where mediation is allowed at all, it is only allowed at the complainant’s option, not yours.
- Cross-examination is disfavored: It is unlikely that you will be allowed to directly question your accuser, due to concerns that cross-examination might re-traumatize the accuser.
Some institutions allow you to present written questions that the accuser can answer outside your presence, while others allow you to pose verbal questions through an intermediary. Even these institutions reserve the right to quash any question or line of questioning.
- You can still be found guilty by a college tribunal even if you are acquitted by a criminal court. There are three reasons for this:
- College disciplinary proceedings and criminal trials are two separate proceedings;
- Colleges are free to forbid certain sexual conduct that is not illegal under criminal law; and
- Since the burden of proof in a criminal prosecution is much higher than the burden of proof in a college disciplinary proceedings, acquittal in criminal court doesn’t mean you don’t meet the standard of proof applicable to the disciplinary proceeding.
- You may have no protection against double jeopardy: In a criminal proceeding, you enjoy protection against “double jeopardy” – once you are acquitted, it is difficult for the prosecution to mount a second prosecution for the same crime. In campus sexual misconduct proceedings, the accuser often has the right to appeal an acquittal.
- You might face a hostile political climate: In the post #MeToo era, you might face a tribunal that is predisposed to believe the accuser and dismiss your denial as simply the attempt of a guilty party to avoid punishment. This kind of political climate is not inevitable, but it is very possible.
What To Do If You Are Accused
Observe the following tips in order to avoid damaging your case:
- “You have the right to remain silent…”: Do not speak about the allegation against you to anyone until you have an advisor to help you prepare a defense strategy and answer questions. Do not speak to your friends and family about your case at all, except perhaps to deny the accusation against you in the most general way. Do not mention your case on social media.
- Become an expert on your school’s written Title IX policies. At your request, the school administration should either provide these policies to you or tell you where to find them.
- Retain a lawyer immediately. You are going to need all the time you can get to prepare a thorough defense.
How an Attorney Can Help You
Under the Campus SaVE Act, you are entitled to the assistance of an advisor of your own choosing, including an attorney. A skilled and experienced Title IX defense attorney can help you in the following ways:
- Provide you with objective advice. It can be extremely difficult to maintain your objectivity when you are accused of sexual misconduct.
- Help you formulate an effective defense strategy.
- Help you prepare for interviews and hearings.
- Make sure that the school follows its own Title IX procedures.
- Provide negotiation and advocacy services with the school’s attorneys to achieve an acceptable result behind closed doors.
- Help you avoid common pitfalls that might damage your case.
We’re On Your Side
If you have been accused of campus sexual harassment or sexual assault, you are going to need to move promptly and decisively. This is because Title IX cases are usually resolved quickly – often within 60 days of the first complaint.
If you even anticipate that a sexual misconduct complaint might be filed against you, contact E. Stewart Jones Hacker Murphy immediately, either online or by calling us directly to set up a free initial consultation. We maintain offices in Albany, Colonie, Schenectady, Saratoga, and Troy.