Appealing Adverse College Sexual Misconduct Results

What Is an Appeal?

An appeal is a review by a different decision-maker of an initial decision. In a college sexual misconduct proceeding, the initial decision is a hearing officer, hearing board, or conduct coordinator deciding whether the accused student committed misconduct and, if so, what sanction the student should face. An appeal would involve the losing side, whether the accuser or accused, asking an appeal officer, appeal board, or other conduct administrator (whomever the school's policy identifies) to review and reverse or modify the initial decision.

Who Gets to Appeal?

Many colleges and universities provide for appeals in their sexual-misconduct policies and procedures, not just for Title IX sexual misconduct where federal regulations require greater protections, but also for non-Title IX sexual misconduct where federal regulations have no direct influence. Some schools do not authorize appeals. Due process may not require a college or university to offer an accused student a full-on review of a decision finding that the student committed misconduct. On the other hand, due process generally requires an unbiased decision-maker. Due process may therefore require a college or university to at a minimum allow an accused student to challenge the decision-maker's independence and to show bias in the decision. Where the school does permit an appeal, generally only the losing side, either accuser or accused, may appeal. Winners usually have no need to appeal.

What Is the Appeal Review Standard?

An appeal does not mean that the appeal officer or board hears the evidence all over again to decide the matter as they wish. Instead, when an appeal is available, college and university sexual-misconduct procedures tend to sharply limit appeal review. Clear error, prejudicial error rather than harmless error, and abuse of discretion are all traditional legal standards for appellate review, each granting deference to the original decision already made. In their appeal procedures, colleges and universities tend to likewise grant the original decision considerable deference. Colleges and universities generally do not offer what the law calls de novo review, which would mean a fresh decision giving no weight at all to the original decision. Accused students who appeal a losing decision need skilled appellate advocacy to reverse or modify those losing decisions.

What Are Appeal Grounds?

College and university sexual-misconduct procedures typically further defer to the original sexual-misconduct decision by sharply limiting the losing side's grounds for appeal. In a court of law, common appeal grounds are a decision unsupported by the evidence, a decision against the great weight of the evidence, or an irregularity in the proceeding constituting prejudicial error. In a court of law, prejudicial error warranting reversal could include admitting inadmissible evidence, disclosing privileged information, and making unduly prejudicial arguments appealing to bias or sympathy. College sexual misconduct procedures tend not to recognize court-of-law appeal grounds. No second bite at the apple. Instead, many policies, like the University of Texas's Systemwide Model Policy on Sexual Misconduct, tend to limit appeal grounds to things like:

  • a decision on matters not charged;
  • the decision maker's conflict of interest;
  • the decision maker's bias reflected in the decision; or
  • newly discovered evidence not available for the initial hearing.

How Do I Pursue an Appeal?

Your college or university will, in its published sexual-misconduct policy or procedure or in a notice and instructions conveyed with the decision on the charges, likely tell how to take an appeal, if an appeal is available. The appeal procedure will very likely have a relatively short time limit within which to formally notify the school's appellate officer or proceeding coordinator of the appeal. Appellants must also generally obtain whatever transcript or record is available from the initial hearing, analyze that transcript or record, and write an elaborate and articulate appeal argument specifically identifying the reversible error. These steps are obviously not for those who lack litigation, analytic, and writing skills.

What Can I Do to Prevail in an Appeal?

Instead of attempting an appeal yourself, retain national academic attorney Joseph Lento and his expert team at the Lento Law Firm. Attorney Lento's premier law practice focuses on defending students accused of college sexual misconduct. He and his expert team have both the trial skills and appellate skills to help you defeat false, exaggerated, and unfair sexual-misconduct charges. Attorney Lento's advocacy makes sexual-misconduct proceedings fair and manageable, when without his strategic knowledge and litigation skills, an accused student can feel lost and helpless.

What Does a Winning Appeal Argument Look Like?

College and university appellate officers typically decide an administrative appeal from a sexual-misconduct finding solely on the parties' written arguments. Appellate courts usually permit brief in-person appearances to orally argue what the written briefs have already shown the court. But in an administrative appeal at your college or university, neither you nor your attorney are likely to have any opportunity to appear before the appeal officer or board in person. Your appellate attorney must therefore prepare an appeal brief that does at least these several things, each in convincing fashion:

  • clearly identify and articulately state the precise and compelling appeal issues on which the appeal officer should reverse the adverse finding;
  • summarize the transcript or record below with accurate citations to each relevant piece of evidence, procedural error, or other anomaly or irregularity supporting your appeal grounds;
  • cite, quote, and interpret the law, rule, regulation, or policy that constitutes the authority justifying the appeal officer to reverse the original finding in your favor;
  • analyze and argue why that authority compels the reversal of the decision against you, including why that error affected the outcome; and
  • clearly state the form of relief that the error and its prejudice justify, explaining why that relief is the only just outcome.

Retain a Premier Appellate Attorney

You can see that winning an appeal takes special skills as an appellate advocate. National academic attorney Joseph Lento knows how to obtain the appeal record, identify winnable appeal issues, and draft the written arguments to convince the appellate decision-maker. With the right representation, you can successfully defend college sexual misconduct charges, including prevailing on appeal of adverse findings. Don't let adverse findings discourage you. Don't give up without exhausting all avenues. Instead, retain national academic attorney Joseph D. Lento and the Lento Law Firm today to handle your appeal by calling 888.535.3686 or going online.

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If you, or your student, are facing any kind of disciplinary action, or other negative academic sanction, and are having feelings of uncertainty and anxiety for what the future may hold, contact our offices today, and let us help secure your academic career.

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