Non-Disclosure of Evidence

The U.S. Department of Education established Title IX in 1972 to address sexually-based discrimination in all academic institutions. Currently, ongoing direction regarding compliance and enforcement is the responsibility of the Office for Civil Rights (OCR). All U.S. schools are required to adhere to federal guidelines, such as preventing acts of discrimination that may occur in the admissions process, accessing benefits, athletic participation, employment, and more. Schools that fail to comply may risk losing eligibility for federal education funds.

There are a host of different ways that a Title IX violation may occur. Sexual harassment is now defined as behavior that a reasonable individual would deem as “severe, pervasive, and objectively offensive” that impedes someone's ability to obtain an education. Examples may involve unwanted appeals for sexual favors or other unwelcome advances. Acts of sexually-based violence are particularly severe violations that are physical and committed against victims who have not provided consent to participate, such as rape or coercion.

Acts of gender-based harassment may involve making slurs or promoting inappropriate stereotypes that create a hostile environment. Often the victims are those whose sexual orientation is outside of traditional norms. Recently, the guidelines have been extended to include stalking and behavior such as dating violence or domestic violence.

Overview of Title IX Procedures

Federal guidance for institutional compliance has often been considered ambiguous. Each school designates a Title IX Coordinator, that has been afforded some flexibility in developing processes and procedures that are suitable for their school. One primary concern has been that all parties be treated fairly and that any conflicts of interest are prevented. New detailed regulations were released that are significant.

Due Process in Title IX

The Department's recent efforts are largely designed to ensure that all parties involved in these proceedings are afforded their right to due process. The term due process in the U.S. refers to a right under the constitution that all individuals are treated fairly in the judicial system. The due process concept has been applied to Title IX matters in many ways. Examples include that investigators and decision-makers are impartial, that parties are afforded the same opportunities to have advisory support, the right to present witness testimony, etc.

Disclosure of Evidence

After receiving a complaint, the school must investigate. The institution has a burden to gather evidence and provide the parties with the opportunity to present relevant evidence. New rules require disclosure (sharing) of all evidence at least 10 days before any statements are made or questions are to be answered, which allows the parties sufficient time to review the evidence. The evidence may be disclosed in either an electronic format or hard copy and must include the “identities of the parties involved in the incident.”

Aside from the evidence gathered by the school's investigators, the parties can also seek witness testimony and evidence from expert witnesses independently. The Department recently eliminated any “gag-order” restrictions that prohibit parties from discussing the allegations, which can be important when pursuing evidence.

Non-Disclosure in Title IX Actions

In the past, there have been many instances where a controversy arose when evidence was not fairly disclosed. Part of the problem was that the regulations only required that schools disclose evidence that they would be presenting in proceedings. Some examples include the following:

  • In Doe v. Salisbury University in 2015, it was determined that the plaintiffs did not have an opportunity to review witness evidence or even to obtain the witness list before a hearing
  • In Wells v. Xavier University in 2014, it was determined that the school had improperly denied the plaintiff with an opportunity to present witnesses
  • There have been many instances where an institution failed to disclose all the evidence they had obtained and prevented a party from identifying evidence that they later deemed as critical

The new regulations have further addressed concerns regarding evidence by requiring colleges and universities to conduct live hearings. All witness testimony must now be subject to cross-examination from the adviser of the opposing party. No testimony from witnesses that refuse to participate in cross-examination is permitted to be viable evidence for consideration.

Full Disclosure and Confidentiality

One key point of contention that arises regarding Title IX involves the right to full disclosure of evidence in situations where the complainant (the alleged victim) wants their identity to remain confidential. This is often seen in cases involving sexual assault. If the alleged victim's request to shield their identity is not possible, then many victims may be discouraged from reporting an incident. Meanwhile, if the identity of the complainant is not revealed to the respondent, it hinders the respondent's ability to properly defend themselves.

How Retaining Seasoned Advisory Counsel May Benefit You

If you have been notified that you are the subject of allegations that violate Title IX guidelines, it is critical to speak with a knowledgeable lawyer that is familiar with this area of practice. Contacting an attorney should be a priority after becoming aware of the claim, as the regulations emphasize the importance of promptly responding and investigating these complaints. Having adequate time for preparation is important. Your attorney will likely have you ready to confidently make statements and effectively respond to questions.

The Title IX guidelines have shifted rapidly; therefore, having an attorney that is abreast of the changes is important amid such volatility.  Your attorney may engage in discussions with the appropriate administrators to negotiate an amicable resolution. He or she will protect your rights to due process and strive to obtain a positive outcome.

Lawyer Represents Title IX Respondents

Students faced with allegations of misconduct that violate Title IX may find their educational plans abruptly shattered. If proven, the student is likely to be suspended or dismissed from the institution. Also, student records and transcripts will contain information indicating that you were the subject of disciplinary action, which may make it difficult to be admitted to another school or graduate program and can limit internship and employment opportunities, if not close doors altogether.

Attorney Joseph D. Lento has the skills and experience needed to provide effective advisory representation that will protect your rights and best interests.  College and university students and their parents are encouraged to contact the office at (888) 535-3686 for additional information.

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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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