Challenges for the Accused (Respondent)
When a complaint is first submitted, the person accused (formally known as the "respondent" in Title IX cases) is regrettably placed at a disadvantage from the start. This Student Disciplinary Process Guide provides a comprehensive overview of how your disciplinary case may proceed.
Your particular college or university will have its own rules and regulations - detailed in the school's Code of Conduct and at times other policies - regarding how misconduct violations will be addressed and adjudicated. This Guide provides information about disciplinary cases involving Code of Conduct violations including academic misconduct, and also Title IX-specific information for cases being addressed under the Title IX Final Rule. Despite the Title IX Final Rule providing uniform structure as to how a Title IX case involving sexual harassment and sexual misconduct will be addressed and adjudicated, each college and university will have certain specific processes unique to the particular school.
Each college or university will have its unique set of potential challenges, and that is one reason of many why an experienced attorney advisor will best protect your rights and interests and help you navigate the path forward. Bearing that that in mind, let's go over some of the challenges an accused student or respondent must face:
Preponderance of Evidence Standard.
Colleges and universities typically employ the “preponderance of the evidence” standard when reviewing and investigating misconduct claims. This standard is designed to favor the rights of the alleged victim and indicates that a student can be found guilty with evidence that suggests a 50-percent or greater chance of guilt. In effect, this standard loosens the burden of proof and eliminates the notion of “innocent until proven guilty,” as we find in a court of law. Instead, the accused must prove that they are not responsible for the alleged act—beginning on the defensive.
No “Statute of Limitations”
While the criminal justice system employs a “statute of limitations,” most schools are not bound by such rules—meaning there is no time limit in which someone may file a complaint. In most cases, the school will permit a complainant to file a complaint against a student who is currently enrolled or even employed in the school, no matter when the alleged misconduct took place. In a few cases, the complaint may be brought years after the incident occurred, even if the complainant is no longer at the school. Furthermore, the school may choose to proceed with an investigation into the charges even if the complainant wishes to withdraw the complaint. An exception to this is the so-called “Final Rule” in Title IX cases, which currently requires the complainant to be enrolled at the school at the time the complaint is filed. For the accused, this means they can still face disciplinary actions and negative marks on their academic record years after the alleged incident occurred.
No Control Over Time Frames
Once a complaint has been filed, the respondent has very little say in how soon the disciplinary process will begin. Since schools tend to face public pressure to administer “swift justice” when complaints are filed, this often means the accused is caught flat-footed and must scramble to gather evidence and witnesses to defend against the charges.
Possible Interim Actions
If the school decides to take “interim action” against the respondent while the investigation takes place (e.g., temporary suspension from classes or a no-contact order), the accused student is basically at the mercy of such actions until proven innocent. In Title IX cases, the school is only allowed to impose such restrictions on a respondent if they deem the student to pose an immediate threat, but otherwise, such actions are at the school's discretion.
The entire disciplinary process may involve numerous interviews, meetings, and hearings before the school makes a ruling. The respondent may be required to attend most or all of these meetings. They may be quite disruptive to the respondent's academic schedule, causing them to miss classes, athletics, extracurricular activities, and other events. The accused student will also need time to prepare for interviews and hearings, including making a statement and presenting evidence. The entire process may take months to complete, possibly disrupting up to a whole semester's worth of work.
What Happens When the Accused Is Notified
Colleges and universities typically include information in their Student Conduct literature about how respondents are notified of the accusations against them. Schools are required to notify the student in writing regarding details of the accusation, the alleged date and time of the violation, the specific rule that was violated and where it is found in the Student Conduct literature, the identities of the accuser and other parties involved, etc. The school must also provide the accused with sufficient time to prepare a response to the claims before the initial interview takes place.
In some situations, a potential respondent may receive advance notice of an upcoming complaint before the formal complaint is filed—for example, they might be alerted by hearsay from friends or other involved parties, or police might question them. Depending on the claims, a student may opt to withdraw from the school before the complaint is formalized. Most schools will not pursue a complaint filed against a student who has already withdrawn, and this strategy can also save the student's record from being tarnished by disciplinary notations. However, suppose the respondent withdraws after the complaint has been filed. In that case, the school must investigate the claim anyway, with or without the respondent's participation, which increased the odds of a finding of guilt. The exception to this is the current Title IX guidance, which permits schools to dismiss sexual misconduct claims against a student who is no longer enrolled. (It's also worth noting that if the alleged act is a crime, the student may still face criminal charges regardless of their enrollment status.)
Once the student has been formally notified of the complaint, the next step is typically a procedural interview. The person tasked with administering the investigation will sit down with the respondent, explain the nature of the charges and the specific alleged violations of the Code of Conduct, describe the disciplinary and investigative procedure, and notify the student of any interim actions that need to be taken. This interview's purpose is largely informative, and the student doesn't need to respond directly to the complaint at this time.
Use Care in Responding
One of the most common mistakes accused students make is to assume that if they just “explain what happened,” they can clear up any “misunderstanding.” They also assume that if they did violate some rule or commit some version of wrongdoing, things will go better for them if they just “own up.” In theory, this sounds noble and right—but in reality, it can be a slippery slope. Granted, respondents should cooperate with the investigation and to be truthful in what they say. The mistake, however, is in assuming the school is “on their side.” Once a formal complaint has been filed, the school's priority becomes the school itself, along with the rights of any alleged victims—not the accused. That means what the respondent says—even truthfully—may still be used against them. If a respondent volunteers too much information without fully understanding the nature of the allegations, or if they speak or email too freely about what is happening, these actions could backfire into further allegations or hurt their case.
Another potential pitfall for respondents is failing to recall details about the alleged incident—a very common issue because of the time that has likely passed. Suppose a respondent has difficulty recalling certain details only to remember them at a later point. In that case, this could cast the student in a negative light and prompt investigators to doubt their honesty. If those “details” represent further student conduct violations, they could even prompt additional accusations.
The bottom line: Respondents should be absolutely certain they understand the nature of the complaints against them and take care in how they respond to them, in order to avoid further complications. It's also a very good idea to secure the assistance of an attorney-advisor before answering the allegations.
Preparing a Defense
Once a respondent has been notified that there has been a complaint, they should immediately begin compiling and preserving any evidence that could bolster their defense. In today's digital age, emails and text messages are the most common examples of evidence that provide a full understanding of what actually happened. Saving all texts and emails associated with the alleged incident—especially those exchanged with the complainant—may be crucial to proving the respondent's innocence because they provide context that the complainant probably hasn't given. IMPORTANT: It's also critical that the student not delete any texts or emails regarding the allegations, even if they seem incriminating. Tampering with evidence can open up a whole new realm of disciplinary actions and possibly even criminal charges.
Another factor in preparing to defend against allegations is to enlist the help of any witnesses who can corroborate the accused student's version of what happened or attest to their character. One important caveat: if the respondent begins speaking too freely with other people about the alleged incident or violation, they are creating additional potential witnesses. In other words, it's not just eyewitnesses who may be called to testify; investigators may also call on anyone they believe has knowledge of the incident, and their testimony could actually be used against the accused.
Honoring Interim Measures
If the school has imposed any interim measures such as restricted access or a no-contact order, the accused student should follow these measures to the letter. Any violation could be grounds for immediate suspension, and the school may opt to bring additional charges into the investigation. Furthermore, if a complainant is particularly vindictive, they may be quick to interpret any action as a violation of a no-contact order or even falsely accuse the respondent of a violation. In such cases, for their own protection, the respondent would do well to maintain a log of their activities, whereabouts, and contacts until the matter is resolved.
Should the Parents or an Attorney Be Involved?
Colleges and universities have different policies on the role of parents or an attorney in disciplinary proceedings. Some schools may go out of their way to “assure” the respondent that no parent or attorney is necessary for the proceedings—but that approach generally works better for the school than for the student. Many schools stipulate that an attorney may only be involved in an advisory capacity, and the attorney may not be allowed in certain hearings. In Title IX cases, schools are required to allow attorney involvement if the student desires. Some states also require this of their schools.
In reality, students and their parents should consider what will best serve the student's interests in a disciplinary hearing. The student has the right to have outside counsel, even if only in an advisory role—and in many cases, that additional support can make a huge difference in the outcome of the case.
The investigative phase is the process in which the school conducts a series of interviews and reviews of the evidence to ascertain the facts about the alleged incident or violation. Some schools employ a single investigator who conducts multiple interviews of the complainant, respondent, and any witnesses over a period of weeks or months. Other schools may utilize multiple investigators to accomplish the same goal.
The first interview with an investigator can be precarious for the respondent because they may not yet fully grasp the nature of the accusations. Without this understanding, it is more likely that the student will say things that reflect badly to the investigator. During one or more of these interviews, the investigator may copy the data off the respondent's phone (e.g., emails and texts) and ask both parties for additional evidence and to identify witnesses.
Investigators have been known to employ aggressive questioning tactics designed to challenge the respondent's credibility and attempt to throw them off their guard. Without adequate preparation—as is often the case—the respondent may inadvertently leave out important details or forget to mention key witnesses and evidence. When in later interviews, the respondent recalls the details with more clarity, the investigator may find contradictions that appear to hurt the respondent's credibility, but in reality may just be things remembered over time.
Another potentially vulnerable moment for the respondent comes at the end of the interview when many investigators will ask the student to sign off on notes from the interview asserting that they accurately represent the conversation. The challenge is that the notes may cover an interview process that has already lasted several hours, leaving the respondent at a disadvantage due to fatigue. Nevertheless, it's important to review these notes carefully, preferably with the assistance of an attorney-advisor, because when you sign off on them, you're agreeing that they are accurate, and you may be later held responsible for what's in them.
When the investigation concludes, the investigator(s) will make a report summarizing the evidence and information compiled. Reports of this type may range from a few pages to several hundred pages long. Depending on the school's process, the investigator may make a “finding” at this time, determining whether the accused student is or is not responsible. This finding would then be presented as a recommendation to school officials who will make a final determination as to sanctions. In other cases, the investigation only determines whether there is cause to move forward into a live hearing—and in some school policies, the accused actually has the right to request a formal hearing. Also, if the case involves sexual misconduct allegations under Title IX, current law requires the school to conduct a live hearing for students at the college or university level (or above) after an investigation. (K-12 schools may have a live hearing after an investigation or may decide responsibility based solely on the investigation.)
Before moving forward, the school will typically make a copy of the investigative report available to the respondent for review. The student may either have their own copy of the report or will be allowed to review it in a room and take notes. The purpose is to allow the student to review both the positive and negative evidence so that they may respond to it before the next steps are taken. In Title IX cases, schools are specifically required to provide the accused with this information and to inform them that they have the right to view and respond to the evidence before findings are presented.
If a formal hearing is to follow the investigation, the respondent should make every effort to be as prepared as possible. A hearing may begin within only a few days of concluding the investigation (although Title IX cases require at least a 10-day preparation window), and in that time frame, the respondent is responsible for drafting a statement, gather witnesses, and procure any further evidence to bolster their case.
The hearing typically takes place in front of some sort of panel or committee. This hearing body may be an established committee or board, or it may be assembled especially for the hearing itself. Depending on the circumstances and school policies, the panel may consist only of faculty and staff, or it may include students.
A hearing may be a day-long event, or it may last several days. At the typical hearing, each side will be allowed to make an opening statement, present evidence, interview witnesses, and make a closing statement. The panel will also ask questions of the complainant, respondent, and witnesses. Each school has specific rules regarding how the hearings are conducted. Some allow for cross-examination of witnesses (similar to a courtroom); others do not. In the majority of cases, the complainant and respondent will appear separately, and in some cases, the opposing side may watch via video from another room.
Title IX cases currently follow their own set of rules as live hearings with cross-examination are currently required. Each party should have an attorney or advisor present for the hearing, and they don't, one will be provided for them. In addition, any witness or party who is unwilling to submit to cross-examination will not have their testimony considered when making the determination—even statements made during the investigation. Additionally, an audio or audio-visual recording must be made of the hearings and made available to both the complainant and the respondent.
Depending on the school's defined policies, the panel may do one of several things at the conclusion of the hearing:
- They may make a determination of responsibility and issue sanctions then and there;
- They may make a determination and recommend a course of action to school officials;
- They may only make a determination, leaving the penalty phase to a separate panel; or
- They may adjourn to make a determination after the hearing concludes.
Once a determination has been reached, either at the hearing or afterward, the respondent will be notified of the decision and any penalties invoked, either in person, in writing, or both.
The Appeals Process
Both the respondent and the complainant generally have the right to appeal the school's determination on the complaint, and any penalties, before the decision becomes final. Most schools only allow appeals on limited grounds, generally including some or all of the following:
- Procedural errors that affected the outcome
- Introduction of new evidence that was not available during the investigation or hearing
- Evidence of bias
- Punishment that is not appropriate to the charge
Complainants and respondents are usually only given a few days to request an appeal. Each school has its own procedure for handling appeals. For some, a separate hearing committee will be seated to review the case, and any new information presented. For others, the dean, provost, or other appeals officer will conduct the review. In some cases, the party lodging the appeal will be permitted to attend (with or without an advisor) and present their appeal in person. Whatever the case, appeals are usually answered within a very short time frame after the person or committee has reviewed extensive documentation of the case.
In most cases, the appeal officer or committee will uphold the panel or the investigator's findings and recommendations. In the rare event that the appeal is upheld, the appeal officer may:
- Overturn the findings and the sanctions;
- Recommend or impose different sanctions commensurate with the offense; or
- Request a new investigation or hearing, taking the new evidence, facts, or findings into account—in which case the entire investigation and hearing process may be repeated for both the complainant and the respondent.
Once again, Title IX cases are governed by their own set of rules concerning appeals. Although most schools already appoint an appeals officer or committee who did not participate in the hearing or investigation, Title IX guidance specifies that the appeals decision-makers cannot be the investigator, Title IX coordinator, or hearing decision-makers. Additionally, schools are required to provide an appeals process if the accused is found responsible, but not if they are exonerated.
What Happens After the Appeal
Once the hearing is over, and any appeals are concluded, the school considers the matter final and offers no further recourse to students. However, suppose the respondent or complainant still feels they have been dealt an injustice, had their rights violated, or that the school mishandled the Title IX case. In that case, there are other options available outside the school system.
OCR Title IX Complaints
The student may lodge an official complaint against the school itself with the Department of Education’s Office for Civil Rights (OCR) requesting that they investigate the school's policies and practices, or investigate any proceedings that the student claims violated Title IX laws or the school's own written policies. This claim does not have to be filed specifically by the respondent or the complainant; any concerned individual has the right to request an OCR investigation on behalf of the accused or of the complainant, whether it's a member of the faculty, staff, parents, alumni, or another student. OCR investigations are quite common; currently, they are investigating hundreds of colleges and universities for alleged violations.
Whoever files the complaint must do so within 180 days of the last date of action from the school. The OCR may take several months before deciding whether to move forward, and the entire process may last for years.
If a student believes the school mishandled their case or denied them justice, they also have the option to file a civil suit against the school. For a civil action to be successful, the plaintiff must be able to demonstrate that:
- The school received “actual notice” of the sexual misconduct complaint; and
- The school responded to the complaint unreasonably or with deliberate indifference.
Bear in mind that if you choose to file a civil complaint when an OCR complaint is in process, the OCR will suspend its investigation until the civil suit is concluded. Considering that the statute of limitations for a Title IX complaint is one to three years from the date of the alleged offense, you may risk “running out the clock” on one complaint while pursuing the other.
Restraining Order or Injunction
Another option available to respondents facing unfair suspension or expulsion is to petition the court for a temporary restraining order or preliminary injunction. This court order effectively stops the school from suspending or expelling the student for Title IX or other violations while other claims are in process. This action can protect the student's right to continue receiving an education during ongoing investigations or litigation.
Breach of Contract Claim
Finally, in some cases, a school's mishandling of a complaint may legally constitute a breach of contract, either with the complainant or the respondent. This particular claim hinges not only on the school's actions (or lack thereof) but also on whether state law considers the school's handbooks or policies to be legally binding contracts. In states where they are legally binding, the student may be able to sue successfully for breach of contract.
Nationwide Student Discipline Defense
If you are a student facing allegations of sexual misconduct, academic misconduct, or other violations of your school's Code of Conduct—or if you are a parent of a student facing disciplinary action—hiring an experienced attorney advisor is your best hope of obtaining a more positive outcome. Attorney Joseph D. Lento is recognized nationwide as a preeminent expert in student defense issues, and he has successfully helped thousands of students rescue their reputations and their professional futures. Call the Lento Law Firm today at 888-535-3686 to see how we can help.