Life at BYU is designed to meet and uphold the tenets of the LDS faith, and so finding yourself on the receiving end of accusations of sexual misconduct on the BYU campus can feel especially alarming. If improperly handled, allegations of sexual misconduct can have a devastating impact on your reputation and prospects. It is vitally important that you thoroughly familiarize yourself with BYU's policies and get an experienced attorney-advisor on your side with so much at stake.
BYU and Title IX or Sexual Misconduct Cases
Brigham Young University's Sexual Harassment Policy prohibits two kinds of offenses: those that come under Title IX and those which do not.
Title IX is a civil law prohibiting sexual discrimination in schools across the country. Title IX bans sexual harassment because this is considered a form of sexual discrimination. A Title IX offense warrants a specific grievance process that is compliant with current Title IX guidance.
In 2020, the Department of Education issued mandatory, new guidance for how schools should handle Title IX offenses. The guidance narrowed the definition of sexual harassment. Student sexual misconduct which took place off-campus or overseas is no longer a Title IX offense. However, off-campus sexual harassment is still prohibited in many schools under school policies, including BYU's own Sexual Misconduct Policy.
Discrepancies like these mean that there can be two different disciplinary procedures at play. What due process you should expect varies depending on whether your alleged offense was a Title IX offense or not. Therefore it is important that you familiarize yourself with school policy as well as Title IX.
BYU Title IX Policy
Title IX offenses come with their own grievance procedure. BYU investigates Title IX offenses according to federal guidelines that lay out how schools should investigate and discipline sexual harassment.
Title IX expressly prohibits sexual harassment in schools. The latest guidance defines harassment as “unwelcome conduct” determined to be “severe, pervasive and objectively offensive.” Your school must launch a Title IX investigation into an allegation of sexual harassment if it occurred on campus or in the school's program, including on off-campus fraternity and sorority houses. However, Title IX processes do not apply to offenses that took place in off-campus housing or overseas.
Title IX guidance ensures that there is due process for students that have been accused of sexual misconduct. The school must allow for a proper investigation and hearing and give you a proper opportunity to defend yourself. If the school fails to do this, they are failing to meet the required federal regulations, and you have recourse to challenge them.
Title IX Disciplinary Procedure
- Incident and report — After someone reports an incident to the Title IX Coordinator, the school will log the incident. They will make a preliminary assessment and implement interim measures for both parties.
- Investigation — The Title IX Coordinator selects an investigator. The investigator will send you an allegation sheet and proceed to investigate the incident, interviewing students and accepting evidence from either party. The investigator will make a finding based on the preponderance of evidence standard (whether it is more likely than not you violated the school misconduct policy). They will then produce an investigatory report. This report will make a finding on your guilt but will not assign sanctions.
- Hearing — After receiving the Investigative Report, the Title IX Coordinator will schedule a live hearing and provide written notice of the time and place of the hearing. Both Parties must provide a written submission ahead of the hearing. Both sides will have an equal opportunity to make any statements at the hearing, including an opening or closing statement. They will have full access to the Investigation Record, and the other party's written submission. Each party's advisor will be permitted to cross-examine any parties and witnesses, asking them any relevant questions and follow-up questions, including questions challenging credibility. If a party or witness does not submit to cross-examination at the hearing, the hearing panel cannot rely on their statements.
- Resolution — Within ten business days, the hearing panel will issue a written Determination Regarding Responsibility. This will include findings of fact and any disciplinary sanctions.
- Appeal — You may submit a written appeal to the Title IX Office within 10 calendar days on the grounds of procedural irregularity, new evidence, or bias.
The Consequences of Sexual Misconduct at BYU
If someone has made a formal complaint against you, the school might take interim measures while the investigation is ongoing to prevent you from being in contact with your accuser. This could be anything from a change to timetables and accommodation to temporary suspension.
If the Disciplinary Committee finds that you have violated the sexual misconduct policy, they have a broad range of sanctions they may assign, including:
- Restrictions on representing the university
- Ban from campus
The school might also make a notation detailing the offense and sanction on your Honor Code file and academic transcript, which can have far-reaching consequences for your reputation and your future.
Non-Title IX Sexual Misconduct Disciplinary Procedure
Some offenses in BYU's Sexual Harassment Policy do not fall under federal Title IX regulations.
This could be because the allegations did not occur in the United States or within BYU's education program or activity. In these instances, you will not be entitled to a live hearing or to have your advisor cross-examine the other side. Instead, the school will follow a different procedure.
BYU: Non-Title IX Grievance Process:
- Incident and report — The Title IX Coordinator will log the incident, make a preliminary assessment and implement interim measures. Investigation — The appointed investigator will send you an allegation sheet and proceed to investigate the incident. They will make a finding based on the preponderance of evidence standard in their investigatory report. The investigator will not assign sanctions.
- Factual Findings Appeal — If the finding in the Investigatory Report is against you, you can appeal the findings. There will then be a factual findings appeal to determine whether you violated the Sexual Misconduct Policy. A deputy Title IX coordinator will conduct the appeal. They can either affirm or overturn the decision in the Investigatory Report or else remand the matter back to the Title IX Office for further review.
- Resolution and Discipline — You will be notified ahead of time about the Disciplinary Committee Meeting. The Committee will make a decision about your case and assign any sanctions, permanent protective measures, program changes, or training.
- Appeal — You may appeal the sanctions the school assigned you on the grounds of disproportionate discipline or procedural error.
In some circumstances, the school can resolve allegations of sexual misconduct informally. For this to occur, you and your alleged victim will both need to agree to this process and to the terms of the resolution.
When being disciplined for non-Title IX offenses, you are not protected by Title IX due process rules. However, that does not mean you are not owed any due process. Your attorney-advisor should still hold the school accountable to its own rules and policies.
Joseph D. Lento: Experienced College Sexual Misconduct Advisor
Unfounded allegations of sexual misconduct can unjustly imperil your career and future. With the stakes as high as they are and schools often operating with their own secretive and arbitrary procedures, it is imperative that you consult an advisor who knows your rights and can defend them.
Joseph D. Lento has successfully defended hundreds students from all across the country in their Title IX and sexual misconduct cases. Whether you have just received an allegation sheet, an investigation is underway, or you need to appeal unfair penalties, the Lento Law Firm can help you. Call Lento Law Firm at 888-535-3686 or contact us online.