Accused of Misconduct Under Title IX?

Title IX refers to a federal statute. The original text is fairly simple and straightforward:

“No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.”

While Title IX encompasses many things, our law firm has and continues to handle matters alleging sexual misconduct such as sexual harassment and sexual violence that occurs on college campuses.

Protections against sexual misconduct, sexual harassment and sexual violence cover students/athletes, faculty, and employees of colleges and universities.

No. While all schools are bound by the federal statute, and must have some Title IX policy, their choice in implementing the requirements can differ in many ways. There are often many similarities between schools, but how they write their policies and who oversees them has drastic effects.  The way schools handle a Title IX case is very different. It is important your Title IX lawyer has the experience, knowledge, and understanding of your schools Title IX and disciplinary process.

Yes. Some violations of a Title IX policy may also fit the definition of a crime. In the event they do, then the complainant has the right to proceed through Title IX, the criminal courts, or both. Statements or actions you take as part of a Title IX proceeding may adversely impact your ability to defend yourself against criminal charges. Therefore it is very important to speak to a lawyer who handles Title IX and criminal matters to protect your rights.

While no two colleges have identical Title IX policies, there are baseline federal requirements that must be followed. Additionally, it is important to refer to your College or University’s specific policy and procedures. Generally, the Title IX process proceeds after an allegation is made that someone on a college campus committed an improper sexual act against another member of the college community. At this point, many colleges or universities will conduct an internal investigation run by their Title IX coordinator.  You have the right to a lawyer or representative from the school as soon as you are informed that there is an investigation against you.  It is always recommended to contact a Title IX/criminal defense lawyer prior to providing any statement.  Thereafter the matter proceeds through either an informal or formal resolution process. For many schools, any violation of a Title IX proceeding results in significant and harsh penalties. If the case cannot be resolved, a formal hearing will take place.  If an adverse decision is rendered, an appeal process is also available.

You will be notified by someone within or related to the Title IX Office. A statement by the complainant may accompany the allegation, or one may follow. Typically, you can provide an initial response. Because the allegation may impact your future, it is important to consider hiring a Title IX/criminal defense attorney who can assist you through the process. It is very important for you at this time to consult your student handbook/Title IX policy manual to review your colleges rules and regulations pertaining to a Title IX investigation.

Some colleges allow for both “informal” and “formal” processes. A formal process is the default presumption, and the informal route usually requires the consent of all parties involved including you, the complainant, and the college.

• Informal processes are usually less rigid, provide you with less protections, but also have less serious penalties. In the event an informal process is agreed upon by all parties, it usually involves some sort of admission to the allegations, as usually there are no formal investigations or hearings, and then there is a negotiation as to appropriate punishment or resolution.
• Formal processes proceed along more official lines as detailed below.

As the formal process continues, school investigators or those similarly trained may investigate the allegation. Besides speaking to the complainant and yourself, they may interview witnesses or review evidence such as emails, text messages, pictures, or other reports. The investigation generates a report which aids the Title IX Office in determining whether to bring formal charges against you.

If charges are brought, it is common for a Panel to be used. A Panel should be well educated about the school’s Title IX policy and it may consist of professors, supervisory athletic instructors, other employees, and even students. A Panel serves like a “judge and jury”. Their job is to oversee the allegations against you, to make findings of fact, and to suggest punishment in the event you are found to have violated the Title IX policy. Who may serve on the panel will defined in your school’s student handbook or Title IX policy.

Within such a proceeding, your rights are severely limited as compared to a criminal proceeding. However, there are some protections afforded you including the right to:

• Be considered not responsible for the charges against you.
• Have an advisor such as a Title IX lawyer or college representative of your choice.
• Suggest specific questions be asked of the complainant or
• Ask that certain witnesses be called to testify.
• Object or take issue with certain evidence being considered.
• Make opening and closing remarks.
• Appeal certain errors in the event you are found responsible.

The Panel will decide if you are responsible for none, one, some, or all the allegations. Colleges choose from one of two standards. One is by “a preponderance of the evidence” meaning they think it is more likely than not that you are responsible. Another is by “clear and convincing evidence” meaning they think the evidence against you is highly and substantially more likely true than untrue.

If there is a finding of responsibility, the Panel will either impose a punishment or recommend one which the Title IX Office will consider when assessing your final punishment. Punishments can include any number of things including treatment, educational requirements, loss of privileges, no-contact orders of protection, suspension (with or without pay in the event you are an employee), and expulsion/termination.  Many colleges and universities have minimum and maximum penalties depending on the nature of the allegations.

Most Title IX policies allow for at least one appeal. They usually do not allow you to argue that the Panel weighed the evidence wrong, but instead that the school’s Title IX policy is improper for some reason; or it is proper but it was followed incorrectly; that you were punished too harshly; or finally, that there is new evidence.  As the appeal process is different for every appeal it is important to consult with your school’s student handbook/Title IX policy to know your appellate rights as you may have a limited timeframe to file your appeal.

Yes.  There is a special proceeding in New York called an “Article 78” proceeding that will allow a New York State court to review the actions and decisions of the college or university. These cases usually need to be brought within very limited time constraints and are defined by very specific rules. You should talk to an attorney who handles Title IX proceedings about this process.

You may have heard that the Federal Government has issued key provisions that schools should implement to take Title IX allegations seriously, both for a complainant and for a respondent. They were released in May 2020 and require colleges and universities to comply with them by August 14, 2020. Key provisions include:

• Specific definitions for key allegations.
• Requirements for clear reporting options.
• Supportive measures including class/dorm reassignments and No Contact Orders of Protection eliminating contact between the accuser and the accused.
• Responsibility for off-campus actions so long as the location is under the control of the university or college, or if the event is school-sanctioned.
• Additional protections for access to allegations, cross-examination, and evidentiary challenges.
• Right to choose between “preponderance” or “clear and convincing” evidentiary standards.
• “Rape Shield” protections allowing complainants to protect any medical, psychological, or similarly privileged records.
• Fair appeals for both complainant and respondent.
• Technology flexibility.

Sanctions vary from institution to institution, however, possible sanctions should be outlined in your college or university’s code of conduct. Sanctions can range from probation with specific monitoring terms, required counseling, specific education requirements, suspension ranging from one semester up to several years, or permanent expulsion.