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What is the Difference Between a College Title IX Investigation and a Criminal Investigation?

Posted by Joseph D. Lento | Sep 03, 2017 | 0 Comments

When a student starts college or graduate school, whether in Pennsylvania, New Jersey, or anywhere in the nation, the student and his or her parents will often have many questions.  Some are questions that have easier answers: "Will I get along with my roommate?  How hard are my classes going to be?"  Other questions require more consideration:  "What should I major in at college?  What do I want to do after college?"  One question that students and parents never want to have to face is, "Why is my college investigating me for a Title IX complaint?"  A related question, "Isn't it the job of the police or law enforcement to investigate sexual misconduct claims at college?"  Before answering why a college or university is investigating a Title IX case, it must be understood how Title IX can become a concern.

What is Title IX?  What does Title IX have to do with campus sexual misconduct?

Title IX of the Education Amendments of 1972 (“Title IX”) is a federal civil rights law that prohibits discrimination on the basis of sex in federally funded education programs and activities. Among other educational institutions, colleges and universities nationwide that receive any federal financial assistance will be subject to Title IX policies. 

"Discrimination on the basis of sex" at college is refers to sexual discrimination.  Sexual discrimination at college can take many forms.  One such form is "sexual violence," which includes, rape, sexual assault, sexual battery, sexual abuse, and sexual coercion.  The more general term of "sexual misconduct" is also used in many instances.  "Sexual harassment," another form of sexual discrimination usually thought of as a workplace concern, can also take place between students at college. 

Any form of sexual discrimination at college, whether sexual violence, sexual assault, sexual misconduct, sexual harassment, or any variation, will invoke Title IX, and as a result, applicable schools (explained further below) will be required involve themselves in addressing and resolving such concerns.

How can a Title IX complaint arise at college?

College can be one of a person's greatest times in life, and not just from the standpoint of having a good time.  It is obviously great to be around friends all of the time and to not have the responsibilities of adulthood, but learning both for the sake of expanding one's mind and to also put acquired knowledge to later use is primarily the purpose of college, or for graduate students, the primary purpose of business (MBA) school, law school, medical school, or any advanced degree.

Although college can be one of a person's greatest times in life, it is not without risk.  Some examples of the many risks that college students may comes across included: facing high-risk social situations (often involving alcohol and/or drugs) for the first time, facing peer pressure from other students, and facing fallout from intimate relationships that did not last or did not end on good terms.

Why am I being accused?

Although all Title IX complaints in college are not due to failed intimate relationships, many are the result of lost love, spurned emotions, and/or situations involving questionable judgment while under the influence; whether due to alcohol and/or drugs.  Adult relationships that do not end on good terms often result in their own fallout, but there are arguable reasons why intimate relationships in college that do not end well result in ongoing consequences. 

For example, young people in college often have a different perspective due to their age, and also have not had the benefit of experience in life as to how to handle a failed relationship.  Young people in college are generally going to remain in close proximity to an ex-girlfriend or ex-boyfriend; possibly remaining in the same classes or residence hall.  Young people in college may also be more susceptible to pressure from friends and acquaintances who may or may not mean well regarding how a failed relationship should be handled. 

Does my college have to investigate a Title IX complaint?

Because colleges and universities nationwide which receive federal funding are required to enforce Title IX policies, such schools are required to investigate such matters and take proper steps to address concerns.  (Most colleges and universities receive federal funding and therefore will be subject to Title IX.)  Significant federal funding is at stake, and the federal government, through the Department of Education Office of Civil Rights, dangles the "carrot" of federal funding in front of colleges and universities throughout the nation.  If a school fails to properly investigate and respond to Title IX complaints, the school will get the "stick" being deemed to be in noncompliance with Title IX policies, and as a result, can forfeit significant federal funding. 

For students accused of campus sexual assault, sexual misconduct, or any variation, unfortunately, colleges and universities have a strong financial incentive to aggressively investigate and enforce Title IX policies.  For a victim of legitimate campus sexual assault, sexual misconduct, or any variation, such aggressive measures would obviously be welcome.  It is in instances when a college student is falsely accused of campus sexual assault, sexual misconduct, or some variation, that such aggressive measures can turn what is a questionable disciplinary system at best into a kangaroo court.

Do campus Title IX cases generally come to the attention of the police or law enforcement?

The interesting (and potentially helpful depending on one's perspective) is that many Title IX complaints made at college will not result in the involvement of the police or law enforcement.  Statistics may not always be accurate, especially for issues of such a sensitive nature where it is arguably impossible to determine how many alleged victims of campus sexual assault or sexual misconduct did not come forward; nonetheless, it has a United States Department of Justice special report documented that approximately only 20% of campus Title IX complaints are brought to the direct attention of law enforcement or the police, either by the alleged victim, known as a  "complainant" in a Title IX campus disciplinary case, or other parties involved. 

Other studies have reported that the percentage of alleged victims of campus sexual assault is lower yet.  In a 2007 study funded by the U.S. Department of Justice that surveyed 5,446 undergraduate women and 1,375 undergraduate men at two large public universities, 2% of sexual assault victims incapacitated by drugs or alcohol and 13% of "physically forced" victims reported the crimes to law enforcement.

Although such a statistics may bode well for an accused student, known as a "respondent" in a Title IX campus disciplinary case, it does not obviate the concern regarding what will take place at the accused student's school during the Title IX disciplinary process, and what can happen if law enforcement or the police also investigate the matter.  Understanding the differences between a college Title IX investigation and a criminal investigation will help an accused student and his or her family better understand the path forward, and more specifically, what steps need to be taken to properly defend against such allegations.

What are the differences between a college's Title IX investigation into allegations of sexual violence and a criminal investigation performed by law enforcement?

The American criminal justice system is founded on certain principles.  For one, it is an adversarial system where the prosecution and defense will generally work as oppositional forces.  Other principles are promulgated by the United State Constitution, which affords criminal defendants who face the risk of incarceration numerous protections, including, but not limited to, the right to an attorney, the right to a speedy trial, the right to a jury trial, the right against self-incrimination, and the right to confront adverse witnesses.

A criminal investigation, unlike a Title IX investigation, is intended to determine whether a defendant violated criminal law.  If, at the conclusion of the criminal investigation, the defendant is tried and found guilty, the defendant may be sentenced to jail or prison, or subject to other criminal penalties.

In addition, government officials responsible for criminal investigations (such as law enforcement, police, and prosecutors) generally have discretion as to which complaints, made by the public, they will investigate.  By contrast, a Title IX investigation (itself) will never result in incarceration of an individual.   The Department of Education Office of Civil Rights reasons that because an accused student will is subject to the threat of incarceration, the same procedural protections and legal standards required in a criminal investigation and prosecution are not required in a Title IX campus disciplinary case.

Unfortunately, the reasoning behind the policies of the Department of Education Office of Civil Rights is questionable at best.  It is not unrealistic to compare a college or university Title IX case with a criminal prosecution at the school level.  If local law enforcement and authorities are not involved in the case (and will not become involved at a later time), and although the school cannot "sentence" a student found responsible to jail, Title IX disciplinary proceedings and a finding of responsibility can have implications on a young person's life and goals that are arguably even more severe than spending time in jail - This is not an exaggeration, and once a student and his or her family completely understand what is at stake, they will realize that responding to Title IX charges in a half-cocked manner will result in unwelcome results.

Why does my college or university have to investigate a claim of sexual misconduct and law enforcement does not have to do so?

For the reasons explained above, specifically, that colleges and universities who receive federal funding are required to remain in compliance with Title IX policies, schools are required to not discriminate on the basis of sex.  How discriminating on the basis of sex becomes an issue at college is when a student is subject to sexual violence, sexual assault, sexual misconduct, sexual harassment, or any variation thereof; when this takes place, and if the school fails to take “prompt and effective steps reasonably calculated to end the sexual violence [or similar concern], eliminate the hostile environment, prevent its recurrence, and, as appropriate, remedy its effects” towards the alleged victim (and in a more abstract sense, the campus as a whole), the school will be deemed to be discriminating on the basis of sex, and will therefore not be in violation of Title IX.

Because of a school's obligation under Title IX, a Title IX investigation is not discretionary unlike a criminal investigation initiated at the discretion of law enforcement authorities.  Ultimately, a college or university has a duty under Title IX to resolve complaints made by an accused student (or other applicable party) promptly and equitably and to provide a safe and nondiscriminatory environment for all students, free from sexual harassment, sexual misconduct, and sexual violence.

What is "prosecutorial discretion" and what does it have to do with campus Title IX cases?

In contrast, and per the principle of "prosecutorial discretion," government prosecuting attorneys have nearly absolute and unreviewable power to decide whether or not to investigate allegations, bring criminal charges against a person, and in cases where the evidence would justify charges against an accused, what charges to bring. 

Because the standards for initiating, pursuing, and completing criminal investigations are different from those used for Title IX investigations performed by a college or university, the termination of a criminal investigation without an arrest or conviction does not affect a school's Title IX obligations.  (In other words, an accused student can still be found responsible and sanctioned accordingly.  Unfortunately, sanctions for a Title IX finding of responsibility are often severe; suspension and expulsion are common.) 

Despite the fact that a school's obligations regarding allegations of campus sexual misconduct is vastly different than those of law enforcement, accused students and their parents should be mindful that the nature of Title IX policies arguably encourages the involvement of law enforcement both directly (see below possible reporting requirements) and indirectly. 

How is law enforcement indirectly encouraged to look into allegations of campus sexual misconduct? 

Because in some respects, schools themselves have an arguable incentive to involve law enforcement - The Department of Education Office of Civil Rights suggests to schools that criminal investigations conducted by local or campus law enforcement (when schools have their own police forces) can be useful for fact gathering if the criminal investigation occurs within the recommended time frame for Title IX investigations (generally 60 days, although this is subject to an extension of time depending upon a number of considerations involved in the case).  As Title IX makes clear, even if a criminal investigation is ongoing, a school must still conduct its own Title IX investigation.

Pennsylvania and New Jersey Colleges and Universities Which Have Their Own Police Force:

Will the police be notified of the Title IX case against an accused college student?

As noted above, most Title IX cases will not result in law enforcement involvement for various reasons.  Complainants and victims' advocacy groups will argue that campus sexual misconduct is under-reported and that the reasons why it is under-reported is largely because the alleged victims do not want anyone to know, do not understand what constitutes rape, are afraid the police will not believe them, and do not know how much control they will have after they report their claims to the police.  Respondents and their parents will often be of the mindset that a complainant did not report the matter to the police or local law enforcement because the complainant is trying to get back at the accused student and made the claims up / is lying, and so forth.

Despite the statistic being in a respondent's favor from the standpoint of whether or not the police will become involved in a campus Title IX case, accused students and their parents must recognize that, under Title IX mandates, a college or university should notify complainants of the right to file a criminal complaint and should not dissuade a complainant from doing so either during or after the school's Title IX investigation.  In addition, although Title IX does not require a college or university to report alleged incidents of sexual violence to law enforcement, a school may have reporting obligations under state, local, or other federal laws.

Pennsylvania & New Jersey Title IX Student Defense Attorney

Because an accused student's future, both academically and professionally, is jeopardized when accused of campus sexual violence, assault, misconduct, harassment, or any variation thereof, students and parents must understand the difficult path ahead.  In addition to recognizing the fact that the investigation conducted by an accused student's college or university will be fundamentally different that that potentially conducted by the police or law enforcement, an accused student and his or her family must take necessary steps as early as possible to try to achieve the best possible outcome in a Title IX case.

Ultimately, in addition to the complainant him or herself, an accused student has two potential adversaries at a minimum, the school itself and law enforcement.  Accordingly, an accused student and his or her family make certain their interests are represented and protected.  Contact attorney Joseph D. Lento today to learn how he can help.

About the Author

Joseph D. Lento

"I pride myself on having heart and driving hard to get results!" Joseph D. Lento has more than a decade of experience passionately fighting for the futures of his clients. Mr. Lento represents students and others in disciplinary cases and other proceedings at universities and colleges across the United States while concurrently fighting in criminal courtrooms in Philadelphia, the Pennsylvania counties, and New Jersey. Mr. Lento has helped countless students, professors, and others in academia at more than a thousand universities and colleges across the United States. He does not settle for the easiest outcome, and instead prioritizes his clients' needs and well-being. Joseph D. Lento is licensed in Pennsylvania, New Jersey, and New York, and is admitted pro hac vice as needed nationwide.

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