You might think only students get charged with sexual misconduct. Faculty and staff face their fair share of accusations, too, though. Whether it's a misunderstanding with a colleague or a wild accusation from a disgruntled student, you are vulnerable, and nothing less than your career is at stake.
Here's the good news: You don't have to deal with a Title IX investigation alone. The law entitles you to choose an advisor, someone who can help you prepare for meetings, work with you to gather and organize evidence, and even sit beside you during formal hearings. Even better, this advisor can be an attorney.
A Brief History of Title IX
Most sexual misconduct allegations are treated as Title IX violations. What is Title IX, though?
Title IX is a federal law passed in 1972. Its original intention was to eliminate sexual discrimination in US educational programs. In the beginning, “discrimination” meant just that: discrimination. However, in the last fifty years, the meaning of this term has been stretched to include all forms of harassment, including things like stalking, dating violence, and even rape.
The problem is, universities aren't really equipped to handle such weighty judicial matters. In fact, you may be startled to discover that your case won't be heard by a learned judge but rather by a handful of your colleagues. You know how campus politics work. Over the years, this situation hasn't always led to fair and just outcomes.
In an effort to address some of these problems, in 2020, the Trump administration issued what it called the “Final Rule,” a set of guidelines that told schools exactly how they should go about investigating and adjudicating Title IX cases. The Final Rule created clear definitions for the words “harassment” and “discrimination.” In addition, it narrowed the scope of schools' jurisdictional authority and guaranteed some important due process rights to the accused.
Unfortunately, the Final Rule didn't put an end to the evolution of Title IX. Many schools, to say nothing of victims' rights advocates, didn't like the changes. Almost immediately upon taking office, the Biden administration issued instructions to schools on how they might get around the new guidelines. In fact, Biden has promised to roll back the Final Rule entirely at some point in the future. This constant change is one of the chief reasons why it is so difficult to fight a Title IX case.
Title IX Procedures
At least for now, a clear set of rules are in place. The full text of the Final Rule runs to some 550 pages, yet another reason why you may need an attorney if you should find yourself accused. Here are the basics, though:
- Your school, like every school, has a designated Title IX Coordinator. This person sets policy and deals with allegations. Some schools require all faculty and staff to report incidents, but under the law, only Complainants (alleged victims) and the Coordinator may sign an official complaint against you.
- Once the Coordinator signs a complaint, they must provide you with written notice. The notice must include the name of the Complainant as well as the significant details of the allegation. It should also apprise you of your rights. Among these:
- You have the right to be presumed “not responsible” (innocent) until proven “responsible” (guilty)
- You have the right to an advisor, who may be an attorney
- You have the right to review all evidence against you
- You have the right to submit evidence and suggest witnesses
- You have the right to further notice of future developments in the case
- The Coordinator appoints an Investigator. This person meets separately with both sides in the case. In addition, they collect any physical evidence and interview witnesses.
- Your school should have a set time period for investigations, anywhere from 30 to 120 days. Once the investigation is complete, the Investigator creates a written summary of their findings. Both sides are then entitled to read this document and suggest revisions before it is forwarded back to the Title IX Coordinator.
- The Coordinator will set a date and time for an official hearing. In addition, they'll select one or more Decision Makers to preside over the proceedings.
- The hearing is an opportunity for both sides to present their cases. You may make arguments, submit evidence, and call witnesses. Title IX also gives you the right to cross-examine the Complainant and any witnesses against you. Schools can decide just how much or how little your advisor may speak on your behalf, but Title IX guarantees they be present to advise you, and only advisors may conduct cross-examination.
- Once the hearing is complete, Decision-Makers use what's known as the “preponderance of evidence” standard to decide the case. According to this standard, they are required to find you responsible if they believe it is more than fifty percent likely that you committed a violation.
- Finally, under Title IX, both sides have the right to appeal the outcome of the hearing. However, there is usually a time limit on filing appeals, and they are only granted for very specific reasons:
- The discovery of new evidence
- The demonstration of obvious mistakes in Title IX procedures
- The demonstration of clear bias on the part of a Title IX official
Non-Title IX Cases
It's worth knowing that not all sexual misconduct cases are Title IX cases. Again, a number of colleges and universities were unhappy with Trump's Final Rule. Many complained that the new guidelines limited victims' rights and allowed many kinds of misconduct to slip through the cracks. In response, these schools created new policies designed to address accusations that no longer fit Title IX's stricter definitions.
Along with these new policies, some schools set up separate procedures for dealing with these so-called “non-Title IX cases.” Because these cases aren't subject to federal law, schools aren't required to provide respondents with any particular due process rights. For instance, your school might not presume you innocent, and many schools don't allow you to defend yourself at a hearing. Title IX cases can be tricky; non-Title IX cases, though, can often be far more challenging.
How Can Joseph D. Lento Help?
You probably have a sense by this point of why you might need an attorney if you find yourself fighting a Title IX accusation. Defending yourself requires more than just hard work and tenacity. It requires an understanding of the law, skill at navigating complex legal procedures, and an ability to craft and respond to complex judicial strategies. You should also expect that the Complainant will have counsel.
You don't want just any attorney, though. You need someone who's familiar with Title IX and who has experience defending university employees.
Joseph D. Lento isn't the average attorney. He's a Title IX attorney. That means he's spent years studying the law; he keeps up with its changes, and he monitors the politics that surround it. Joseph D. Lento also understands how schools operate. He knows what tactics they use, and he knows how to counter those tactics. Joseph D. Lento has helped hundreds of college employees get the justice they deserve, and he can help you.