New Title IX rules went into effect on August 14, 2020. Click here to learn about the changes to Title IX and how college sexual misconduct cases will be addressed and adjudicated under the new rules.
Colleges and universities aggressively pursue Title IX charges against students, and the stakes are very high. Regretfully, some students and parents do not recognize how much is at stake, both immediate and long-term, and as a result, do not take the necessary steps and precautions to try to obtain the most favorable outcome when accused of a Title IX sexual misconduct charge.
At colleges and universities across the nation students are accused of sexual misconduct resulting from their schools' Title IX policies more often than may be realized is in fact the case. Schools, due to federal legislation, are under tremendous pressure to aggressively pursue Title IX claims alleged to have taken place both on and off their campuses. Students, when accused of Title IX violations, are often confronted with language taken directly from criminal codes: rape, sexual assault, intimate partner violence, stalking, sexual harassment, and the like.
Despite the quasi-criminal nature of campus Title IX proceedings, students charged with Title IX violations, also known as "respondents," do not have the procedural, evidentiary, and constitutional rights afforded to those accused of criminal offenses. Even compared to civil causes of action where the rights afforded a defendant are lesser than in criminal court, respondents in Title IX proceedings have lesser rights yet. In addition, the limited rights that are afforded a Title IX respondent are either minimal or altogether nonexistent. Students accused of Title IX violations have their academic and professional futures on the line, and it is critical to take the necessary steps to properly defend against such charges.
Do I need to obtain an experienced adviser for my Title IX case?
Title IX cases are difficult for accused students because of the limited procedural safeguards which characterize the campus disciplinary setting. Regretfully, some students, despite their and their parents' best intentions, proceed with the Title IX disciplinary process without a full understanding of the possible consequences, both immediate and long-term. Those unfamiliar with the realities of the Title IX disciplinary process often do not realize this until it is too late.
The proper course of action is to try to obtain a favorable result at the Title IX disciplinary level rather than try to appeal after being found responsible for the charge or charges and sanctioned accordingly. Trying to mitigate the damage after an adverse finding and sanctions is a mistake because Title IX sanctions will always be severe. An expulsion or suspension is the expected sanction if a respondent is found responsible for a Title IX charge. Another major consequence is the stigma of having the Title IX finding and sanction noted on the student's disciplinary record. Some schools will also include such information on a student's academic record.
Title IX cases also proceed quickly pursuant to the Department of Education's Office of Civil Rights (DOE-OCR) "recommendations." Specifically, a Title IX case is generally expected to be investigated and resolved within 60 days. For this reason, a student should immediately obtain an adviser who is highly experienced in college disciplinary proceedings. One of the few rights afforded a respondent is that the advisor at almost all colleges and universities, per the Campus SaVE Act, can be anyone of their choosing. It is well understood that students who retain an attorney experienced in Title IX proceedings will achieve a better result.
The benefits to a respondent of retaining an experienced attorney as their advisor as early as possible during a Title IX investigation are manifold. An experienced attorney-advisor can: 1) provide objective guidance to the respondent; 2) make strategic decisions to best defend against prospective charges; 3) prepare the respondent for interviews and hearings with the school; 4) ensure that the school follows its own Title IX policies and procedures; 5) provide legal support, negotiate, and advocate with the school's attorneys behind the scenes in an effort to achieve an agreeable resolution; and 6) help the respondent navigate every step of the high stakes Title IX disciplinary process.
Attorney Joseph D. Lento has helped hundreds of students at the undergraduate, graduate, and professional level, and also professors and others in academia, who have been accused of Title IX sexual misconduct. He has successfully resolved countless Title IX cases involving serious allegations of sexual misconduct including rape and sexual assault at major colleges and universities across all corners of the United States - in Alaska, California, Florida, Hawaii, Maine, Texas, and so forth - and he has also represented many clients who are studying or teaching abroad - for example, in Asia, Europe, the Mideast, and the Caribbean.
Should I respectfully remain silent?
When a student is first contacted by their school and informed that they are the subject of a Title IX investigation, or asked to answer questions as part of an investigation of any kind, students should not speak about the matter to anyone: campus police, public safety, school administrators, professors, friends, or classmates. The respondent should not mistakenly believe that the problem will "blow over," and should instead involve their parents or family immediately. If a respondent is summoned to speak about the matter in any capacity, the respondent should respectfully decline to do so until they can exercise their right to obtain and consult with their advisor. The advisor, as necessary, will also be able to postpone any meetings or interviews regarding the matter until after the respondent and advisor can develop the best strategy to move forward.
How well do I need to understand my college's or university's Title IX disciplinary process?
Colleges and universities use different models in investigating and pursuing Title IX charges against a respondent. Theses differences can make a fundamental difference in terms of how a Title IX charge is investigated and ultimately resolved. One of the first steps a respondent facing Title IX allegations should do is familiarize themselves with their particular school's Title IX disciplinary policies and procedures which will available in the school's student handbook, code of conduct, and/or separate Title IX provisions. These policies and procedures should be reviewed to become familiar with: 1) a respondent's rights and obligations at their particular school; and 2) the limitations on due process at the respondent's school.
Becoming familiar with the school's Title IX policies and procedures will also allow a respondent to understand the Title IX model that will be used during their investigation and proceedings. Some colleges and universities use the traditional disciplinary hearing model in which the investigation takes place independently of the adjudication stage of the proceedings. At such schools, an investigation will be conducted often by campus police, public safety, an investigator appointed to the matter, or some combination thereof. If an investigation reveals that there is enough evidence for Title IX charges to be brought, the respondent will have the right to have a hearing on the matter before a panel or adjudicator where live witnesses can testify and evidence can be presented. Under such a model, the hearing panel or hearing officer will make determine the findings against a respondent and sanctions as necessary. The traditional disciplinary hearing model is contrasted by the single investigator model where either an school employee or outside investigator conducts the Title IX investigation, weighs the credibility of witnesses and the sufficiency of evidence, and ultimately determines responsibility and sanctions. Other schools yet use a blended model in which an investigator makes recommendations as to findings, responsibility, and sanctions, and submits these recommendations to a hearing panel to accept or reject.
Is there limited due process at best in a Title IX case?
Each Title IX model has its arguable benefits and disadvantages. The most important consideration is that although a school's Title IX policies and procedures may appear to offer the respondent the requisite due process in light of the seriousness of what is being alleged, these models provide significant limitations on a respondent-student's rights in defending against such allegations. That is why it is critical that any right that is afforded is utilized to its full advantage. An experienced attorney will be able to use the most effective methods of defending against Title IX allegations and charges bearing in mind the particular policies and procedures of the given school.
An experienced attorney will also understand that despite the differences in how a college or university handles Title IX claims, there are established factors that almost all schools are subject to because schools make dedicated efforts to comply with the Department of Education's Office of Civil Rights "recommendations" (which are effectively "mandates" because schools will lose significant federal funding for noncompliance).
Such established factors are as follows:
The standard of proof is low - The respondent in a Title IX proceeding has to be found guilty by a "preponderance of the evidence" per the recommendation of the Department of Education's Office of Civil Rights. Unlike criminal court proceedings where a defendant has to be found guilty "beyond a reasonable doubt," the standard of proof in Title IX proceedings is significantly lower. The "preponderance of the evidence" standard is satisfied if what is in dispute is more likely than to be true than not true (a greater than fifty percent chance). The "preponderance of the evidence" standard is not just lower than the standard used in criminal court proceedings, it is also lower than the "clear and convincing" standard used in most civil court proceedings; where a party must prove that it is substantially more likely than not that what is in dispute is true). The low standard of proof in a Title IX proceeding is one of the most considerable challenges for a respondent to not be found responsible.
Mediation is not recommended - Whereas mediation is used by colleges and universities to resolve disciplinary cases in certain instances, mediation between the respondent and complainant in a Title IX proceeding is not recommended by the Department of Education Office of Civil Rights. A limited number of colleges and universities do, however, allow mediation in cases that do not involve sexual assault or sexual violence. At such schools, it will always be the complainant's decision as to whether mediation will be considered, and the complainant will also be able to pursue formal action at anytime during the Title IX campus disciplinary process; even if mediation was initially decided upon by the complainant as a possible method of resolution.
Cross-examination is not recommended - Although cross-examination of a testifying witness is considered an indispensable component of American jurisprudence, the Department of Education's Office of Civil Rights recommends against "direct" cross examination of complainants in Title IX proceedings. Outside of Title IX proceedings, cross-examination is primarily used to elicit favorable facts from the testifying witness, or to impeach the credibility of the testifying witness to lessen the weight of unfavorable testimony. When cross-examination is not abridged as it is in Title IX proceedings, attorneys use cross-examination to represent their client so that the fact-finder, the judge or jury for example, can determine: 1) what happened based on the available evidence; and 2) who should be found responsible. The theory behind cross-examination is that when attorneys on both sides of a disputed matter are allowed to vigorously represent their clients' interests, the facts will be disclosed, and consequently, the truth will be revealed.
Because the DOE-OCR recommends against "direct" cross-examination of a complainant in a Title IX proceeding, the effectiveness of cross-examination to reveal the truth can be severely curtailed. Colleges and universities attempt to address this (major) issue by allowing respondents to: 1) submit written questions to; and/or 2) pose verbal questions to an intermediary such as the chairperson of a Title IX hearing panel or the Title IX investigator. The theory is that the intermediary will thereafter ask the complainant the proposed question. The intermediary, however, will have discretion as to whether the proposed question will be asked. Even if an intermediary intends to ask the respondent's question to the complainant as the respondent intended, the question itself can often be misinterpreted or improperly asked by the intermediary. This unfortunate reality of cross-examination through an intermediary also significantly weakens the prospective benefit to the respondent of being allowed to question the complainant in a Title IX proceeding.
A concurrent criminal investigation will usually not delay Title IX proceedings - The Department of Education Office of Civil Rights recommends that a college or university's Title IX investigation and proceedings not be delayed even when a Title IX respondent, as a result of the Title IX allegations, is under criminal investigation, or even charged with criminal offenses. Due to the extremely serious nature of Title IX allegations, regardless of the complainant's arguable inherent motivation in reporting the alleged offense(s) to law enforcement, it is standard practice for colleges and universities to recommend that the complainant in fact report the matter to law enforcement. Even if a respondent is not under criminal investigation or charged with criminal offenses, the prospect remains. Because of this reality, when a respondent chooses to participate in their college or university's Title IX investigation and proceedings, doing so arguably presents both an opportunity and a major concern.
By speaking to their school regarding the matter, a respondent is exposed to potential criminal charges and/or civil liability. In addition, a respondent has to be extremely mindful that communicating about the matter to anyone in any capacity (for example: verbally, or in written form; electronically or otherwise) can further complicate the matter. That being said, participating in the Title IX process presents an opportunity for a respondent to give their version of events regarding the allegations as claimed by complainant.
Despite the DOE-OCR recommendation, if a respondent were to choose to not participate in the Title IX disciplinary process in light of the prospect of criminal exposure and/or civil liability, a respondent can very much can exercise that right. If that is the case, however, the respondent's college or university can proceed with the Title IX disciplinary process against the respondent and sanction accordingly. In the alternative, a respondent, in certain instances depending on their particular college or university, may be able to temporarily withdraw from school pending final disposition of any criminal charges and/or civil liability. A respondent must make an informed decision as to what is the most appropriate response to Title IX allegations. An experienced attorney can assess the circumstances and help the respondent decide the best course of action.
The respondent and the complainant have equal "rights" and equal limitations on these "rights"- Throughout the Title IX disciplinary process, the respondent and the complainant are afforded equal rights and are also subject to the same limitations on these rights. These rights will vary depending on the Title IX policies and procedures used at the respondent-student's particular college or university. For example, if the complainant is allowed to add comments to a Title IX investigation report, the r