In April of 2024, the Department of Education approved New Title IX rules, which are scheduled to take effect on August 1, 2024. Our firm is closely monitoring ongoing challenges to these new rules in court, and is working hard to provide you the most up-to-date information. Click here to learn about the current state of Title IX and how we can help if you are facing accusations.
No one would ever question whether or not a college or university has a responsibility to protect its students.
Certainly, that obligation should extend to victims of sexual crimes like stalking, sexual assault, and rape. Schools should do everything within their power to help victims to recover and to obtain justice.
A school should have an equal obligation, though, to protect students accused in such cases. Our country's legal system is founded on the principle that those accused of crimes should be treated as “innocent until proven guilty.” The Constitution guarantees defendants certain due process rights, including the right to know the charges against them and the right to counsel.
Unfortunately, in today's society, we sometimes struggle to balance out the rights of these two groups of people. We want to protect victims so much that sometimes we let due process slide.
Partly for historical reasons, colleges and universities often have a particular blind spot in this area. Maybe this is understandable given that a school's function is to teach, not to safeguard legal principles. Still, if you've been accused of sexual misconduct at California Polytechnic State University - Pomona, you should have certain rights, and they shouldn't be overlooked simply because you're a student.
How Did We Wind Up with Two Systems?
Most schools today still address the bulk of their sexual misconduct cases using Title IX. This is a federal law passed in 1972 that prohibits sexual discrimination in publicly funded educational programs.
Under the law, sexual discrimination means any act that could interfere with a woman's right to an equal education, from simple harassment to sexual assault and rape. Of course, schools aren't necessarily equipped to handle such weighty legal matters, and so for many years, the federal government allowed them to utilize a loose set of procedures in investigations and adjudications. The result: Over time, respondents lost many of the due process rights they deserve, such as the right to defend themselves at a formal hearing.
In 2020, the Trump administration stepped in and tried to restore some balance to how Title IX is enforced. Under the leadership of Betsy DeVos, the Department of Education issued clear guidelines for how schools should investigate such cases. Among the changes, the administration narrowed the definition of “discrimination,” limited school jurisdictions, and restored a number of key rights to respondents.
However, many schools rejected these new guidelines preferring to keep in place their old mechanisms which favored victims. They couldn't ignore the law entirely, but they did create a whole new set of rules to cover cases that no longer fit into Title IX. As a result, students accused of sexual misconduct can be charged under Title IX or under the Student Code of Conduct, and the rules for these two kinds of investigations can be quite different.
How Does Cal Poly Treat Sexual Misconduct?
As it happens, at Cal Poly Pomona, the basic procedures for dealing with sexual misconduct are roughly the same whether the allegation is classified as Title IX or non-Title IX. That is:
- Once the school has determined to pursue an allegation, it must notify respondents they are being investigated. Respondents have the right to appoint an advisor, and this advisor may be an attorney.
- Next, the school appoints an investigator to pursue the matter.
- The investigator interviews both sides in the case, collects evidence, and gathers testimony from witnesses.
- The investigator creates a report of their findings. Both sides have an opportunity to suggest changes to this report before it is submitted to the school.
- A formal hearing takes place. This hearing is live, though either side may request it be conducted via closed-circuit video. A Hearing Officer appointed by the school presides over the proceedings.
- At the hearing, both sides may ask questions of one another, present evidence, and cross-examine witnesses.
- At the conclusion of the hearing, the Hearing Officer uses the “preponderance of evidence” standard to decide whether or not the respondent is “responsible” for a violation. This officer also assigns any sanctions as necessary.
- Following the decision, both sides have ten days to appeal that decision under certain conditions:
- The outcome isn't supported by the facts
- Procedural errors occurred
- New evidence arises
- The sanction does not fit the violation
Title IX vs. Non-Title IX
While the processes in the two kinds of cases are similar, Title IX is far more rigid in what it mandates. For example, where the school must adhere to 6 different provisions when it notifies respondents under its own policy, it must adhere to 14 provisions under Title IX. The investigative process is outlined in far more detail in the Title IX guidelines, including explanations for how advisors may participate in interviews and how much advance notices parties must be given before meetings. Likewise, the Title IX hearing procedures are enumerated at far more length.
Again, for the most part, these differences primarily have to do with surface issues in the case. However, there are some instances where there are clear substantive issues with the non-Title IX policy, especially when it comes to the respondent's rights. So, for example, the investigator in a non-Title IX case is not required to reveal all evidence and testimony to the defense as the investigation goes on, as they are in a Title IX case. This puts the respondent at a decided disadvantage.
Because the two kinds of investigations seem similar, it is especially important to retain the services of a qualified attorney who can parse the subtle differences and make sure the school isn't allowed to violate your rights.
Joseph D. Lento, Experienced Sexual Misconduct Attorney
Students who have been accused of sexual misconduct sometimes don't take the charges seriously. That's a mistake. The process is complex and difficult to navigate, and penalties can be severe. The minimum penalty is typically suspension, and in most cases, schools seek to expel students they find responsible for violations.
You can't take on the system alone. You need professional help.
Joseph D. Lento is an experienced attorney who built his career on sexual misconduct cases. He knows Title IX, but he's also familiar with Cal Poly's policies. Whatever kind of allegation you're facing, Attorney Joseph D. Lento can help you devise a winning strategy. He will stand by your side from start to finish and ensure you get every right you deserve.
If you or your child has been accused of sexual misconduct by your college or university, act now to protect your future. Call Attorney Joseph D. Lento and his team at the Lento Law Firm today at 888-555-3686, or use our automated online form.
