Colleges face intense pressure to vigorously investigate and prosecute allegations of sexual misconduct, like harassment or rape, that implicate Title IX. If there is even the perception that the school is dragging its feet in enforcing the provisions of its code of conduct that relate to sexual misconduct, Title IX can strip the school of its federal funding. Therefore, colleges have been known to pay short shrift to an accused student's due process rights while they protect what is often their primary source of funding, especially when it comes to a student's right to appeal what is often an inevitable outcome at the Title IX hearing.
The code of conduct at Pennsylvania State University, the largest college in the state of Pennsylvania, provides a fairly typical example of how difficult it can be to appeal an adverse outcome at the end of a Title IX case.
Penn State's Run-of-the-Mill Provisions for Appealing a Title IX Case
In the grand scheme of things, Penn State's provisions for appealing the outcome of a Title IX hearing are pretty normal. Contained in Penn State's Code of Conduct at Section VI(G)(2), appeals from a Title IX, or any misconduct hearing, for that matter, require a student to show one of four things:
- The appealing student has been deprived of their rights
- The procedures for the investigation and hearing were not followed, and this breach of the rules impacted the outcome of the case
- New evidence, which was not available during the earlier hearing and would have impacted the outcome of the case, has come to light
- The sanctions issued at the hearing were either outside the permissible range or were otherwise unjustified
Most schools have procedural barriers like these in place to reduce the number of appeals and keep the outcome of as many hearings as possible finalized. However, these particular requirements also keep lots of strong appeals from ever happening.
The Problem of Evidentiary Showings in Appeals Documents
Whenever a requirement for lodging an appeal is to show that evidence or a procedural error would have “affected the outcome” of a case, the person trying to make the appeal is put in a very difficult position. They essentially have to show that they should have won, in order to have their case reheard so they can show that they should have won. This allows the appellate board for a Title IX case to do most of the legwork in determining an appeal, even before hearing it.
Coupled with the fact that many schools require appeals to be filed in a very short timeframe – Penn State only allows appeals lodged within five days of the lower hearing panel's decision – these procedural barriers to an appeal can be damning to even the strongest case. Nonetheless, depending on the circumstances, it may be a step that must be taken.
Joseph D. Lento: A National Title IX Attorney
Joseph D. Lento understands and prepares for these procedural difficulties, even as the case is progressing through the lower hearing process. Tap into his knowledge of the Title IX system by calling his law office at (888) 535-3686 or by contacting him online.