If your college or university has charged you with sexual misconduct, you should know that things are likely to get worse before they get better.
Don't despair: With the right advisor—the right legal representation—you can prevail against unfair charges.
However, the process of defending yourself can be arduous. Campus judicial systems can be notoriously difficult to navigate. You might, for example, be charged under the federal Title IX statute that prohibits sexual discrimination. On the other hand, you might be charged with so-called “non-Title IX sexual misconduct.” Under this second kind of charge, the University of Kansas employs several different kinds of investigative processes, and which one they choose will depend on the specific nature of the allegation.
Your head may already be spinning at this point, and that's totally understandable. As a respondent (defendant), you start with the deck stacked against you. The rules are complicated, and your school will use that if it can to keep you at a disadvantage, to make sure you are found “responsible,” and ultimately to expel you.
Take the time now to learn as much as you can about how the University of Kansas treats sexual misconduct. Then find the very best attorney you can, an attorney with experience taking on colleges and universities, an attorney who can help you make sense of what you're facing.
What is Title IX?
For a number of years, schools have investigated and adjudicated most sexual misconduct accusations under the federal government's Title IX. This law, passed in 1972, was meant to eliminate sexual discrimination in all federally funded educational programs. Over the years, “discrimination” has come to be interpreted in the broadest possible sense to include any sort of harassment, from hate speech to stalking to sexual assault and rape.
While the law helped to bring sexual equality to college campuses, it was not without its flaws. For instance, as an enforcement mechanism, the government threatened to withhold funding from any school that refused to comply. As you might expect, that frightened most universities so much that today they go overboard in pursuing allegations and often assign draconian sanctions to those found responsible.
In addition, Title IX hasn't always provided a level playing field for those accused of sexual misconduct. For many years students weren't necessarily guaranteed the right to defend themselves at a formal hearing. Schools often began investigations with the presumption that respondents were guilty.
The Trump administration undertook massive Title IX reform in 2020, designed to help restore many due process rights to the accused in such cases. The result is Title IX procedures that are far fairer and just than they once were. Even now, though, students aren't innocent until proven guilty “beyond a reasonable doubt,” and hearing committees don't have to agree unanimously in order to pass judgment. Things are better, but the system is far from perfect.
How Does a Title IX Case Work?
So how does Title IX work in a practical sense at the University of Kansas?
All sexual misconduct accusations are made to the Office of Civil Rights and Title IX Procedure. The Title IX coordinator must first determine whether the accusation falls under the Title IX statute. If it does, they appoint an investigator.
The school is required to provide supportive measures to both the claimant and the respondent, including medical care and counseling. In addition, the school must advise the respondent of their rights, including the right to be presumed innocent and the right to appoint an advisor who may be an attorney.
The investigator has up to 60 days to complete the investigation. During this time, they will meet with both sides, interview any relevant witnesses, and gather any physical evidence. At the end of 60 days, the investigator completes a written report on their findings. Both sides have an opportunity to review this document and suggest changes before it is forwarded to the Title IX coordinator.
Once the coordinator has the investigative report, they appoint a hearing panel consisting of a chair and two additional members to oversee a formal hearing into the case. At least one panelist must be the same status as the respondent (faculty, staff, student). This hearing must be conducted live, though either side may request that it take place via closed-circuit video.
At the hearing, both sides may question one another. In addition, both sides have the right to present witnesses and to cross-examine any witnesses against them. While students must make their own opening and closing statements, only advisors may ask questions.
At the conclusion of the hearing, the panelists decide whether or not the respondent is “responsible” for a Title IX violation. A responsible verdict requires only a two-thirds majority, and the decision-makers don't use the “guilty beyond a reasonable doubt” standard when reviewing evidence. Instead, they use the much less strict “preponderance of evidence” standard. According to this rule, they must only decide that it is “more likely than not” the respondent violated Title IX.
Ultimately, an administrator decides, in consultation with the Hearing Chair, what sanctions to assign to responsible students. The University of Kansas lists a wide variety of penalties in such cases, but in practice, suspension is usually the minimum. More often, responsible students are expelled.
Both sides have the right to appeal the decision but only under very specific circumstances, such as the demonstration of bias or the discovery of new evidence.
What if it's Not Title IX?
The Trump administration's Final Rule went a long way towards safeguarding the rights of the accused in sexual misconduct cases. Of course, the Final Rule is already under attack by the Biden administration, which has promised to do everything it can to repeal it.
The more immediate problem for Title IX, though, has nothing to do with the possibility of future changes. When the new guidelines went into effect in August of 2020, many schools openly rejected them. The new rules, for example, limited school jurisdiction to incidents that happen on campus or in conjunction with designated school events. A number of colleges and universities felt they should be able to investigate any accusation by one student against another, even if the incident was supposed to have occurred off-campus.
A number of schools, including the University of Kansas, chose to create their own policies against sexual misconduct, over and above what Title IX had to say. The result: more chaos than ever. Now students might be charged with Title IX offenses or non-Title IX offenses. Worse, schools such as the University of Kansas didn't feel obliged to use Title IX procedures in non-Title IX cases. The system is now more complicated than ever, and in many cases, the accused lose out on even minimal Title IX rights.