Title IX Hearings Aren’t Trials. What’s the Difference?

If you've been accused of sexual misconduct by your college or university, there's a good chance you will wind up facing a Title IX disciplinary hearing.

When you hear the word “hearing,” you might think about courtrooms you've seen in films and on television: hallowed halls with vaulted ceilings, lots of impressive oak, and stern-faced judges. A Title IX hearing is more likely to take place in a conference room in the basement of the student union and be conducted by an astronomy professor.

There are some similarities between Title IX hearings and courtroom trials. Obviously, in both cases one party has accused another of committing a crime. Both kinds of cases usually involve the presentation of evidence, witness testimony, and cross-examinations. In both cases, a group of individuals weighs the evidence and renders a verdict. And whether you're at trial or involved in a hearing, you can be given serious penalties if you're found guilty.

However, there are far more differences between a Title IX hearing and a courtroom trial than similarities. In some ways, those differences are to your advantage. Ultimately, though, you'll find that a Title IX hearing is far more unfair than an actual court trial. Colleges and universities have clear incentives to find you guilty, and they'll do almost anything—including denying you your fundamental rights—to convict you.

What are You Facing: Title IX Penalties

Let's start with the good news. No matter what the alleged offense, your school can't send you to jail. Thankfully, only judges and juries have that kind of power. In fact, a Title IX investigation doesn't even mean you've broken the law. Title IX violations aren't a criminal matter at all.

If anything, it's your college or university with the problem.

Title IX was passed in 1972 to curb sexual discrimination and harassment in educational programs. To be fair, colleges weren't exactly welcoming spaces for women in the late 1960s and early 1970s. The federal government did need to do something. What it did was put colleges and universities in charge of cleaning up their own acts. That may not seem wise, but the government promised to withhold funding from any school that refused to cooperate as an extra incentive. In fact, under Title IX, schools are obligated to respond to every allegation no matter how spurious. As you might imagine, none are willing to risk the negative consequences that may result if they don't. In other words, it's your university that is worried about getting in trouble. How they treat you is a direct result of that worry.

Now the bad news: the penalties in Title IX cases are every bit as serious as those you'd face in a court of law. True, you can't be sentenced to jail, but at a minimum, you can expect to be suspended. More likely, your school will do everything it can to expel you. Remember, your school has lots of motivation from the federal government to pursue you as zealously as it possibly can.

You might be thinking, no big deal, I'll transfer somewhere else. It's not quite that simple. First, your school will hold you accountable for the classes you're taking, and it could decide to penalize you by failing you in those classes. That means your GPA takes a serious hit.

Worse, any kind of adverse action taken against you by your school, even if only on an interim basis while the Title IX case is being investigated, can cause significant consequences. Certainly sanctions such as suspensions and expulsions come with severe consequences, including at a minimum, a transcript notation that explains the reason for the action taken against you. With a record of sexual misconduct, you'll find it difficult, if not impossible, to find another school that will admit you.

Put simply, a Title IX hearing could mean the end of your academic career. That's upsetting enough on its own. You've invested time, energy, and money in getting a degree, and if you're found responsible, all of that will have been for nothing.

More importantly, though, without a college degree you'll have trouble finding a high-paying job and establishing a career. You know the statistics: college graduates earn almost double what high school graduates earn over their lifetime. You won't even be able to claim that you've had some college education since that sexual misconduct notation will prevent you from showing your transcript to prospective employers.

So no, a guilty verdict or finding of responsibility in a Title IX case won't send you to prison. It can certainly make the rest of your life harder, though.

Investigations

No question, the real police can be dogged in their investigations, especially if they're convinced you are guilty. However, they don't investigate every complaint they receive. For one thing, outside the workplace, sexual harassment isn't a crime. There are crimes related to harassment, like stalking or date rape, but even when a crime like that is involved, a detective may not decide to pursue a complaint. They want to be reasonably certain there's enough evidence to convict you at trial before they proceed.

Colleges and universities are obligated to investigate absolutely every allegation.

In addition, the real police operate separately from the courts. The American justice system is set up that way for a reason. Investigators are tasked with doing everything they can to dig up evidence of a suspect's guilt. Usually, that process gives them a clear bias against a defendant. Placing the responsibility for judging that evidence in the hands of a separate entity—a judge and jury—ensures you'll get a fair, objective trial and raises the chances the jury will render the right verdict.

In contrast, in Title IX cases, a single entity, the school itself, investigates and tries the case.

Title IX investigators are frequently biased against the accused from the very moment they begin their work. In several recent cases, federal courts have discovered that investigators didn't interview defense witnesses. In a 2018 lawsuit, the courts found that the University of Mississippi had published investigative training materials that said that when a complainant lies, those lies should be taken as evidence of telling the truth.

Such advice springs from misguided intentions, but universities also aren't above using dirty tricks during an investigation. Of course, schools often have a natural sympathy for the “victim” that colors their behaviors. Many will try to suspend you before an investigation even begins. Some may cancel your campus email service, preventing you from documenting necessary evidence.

There are instances when you might face similar mistreatment from actual cops. Still, there's something particularly upsetting when it's your school, the place that's supposed to be educating you, that's doing the mistreating.

Title IX Hearings

Once a Title IX investigation is complete, the investigator writes a report that details their findings. Both sides then have the opportunity to comment on that report. Finally, the document is forwarded to the university Title IX office.

Under current Title IX guidelines, you are entitled to a hearing. The Title IX office appoints a hearing officer who organizes a panel or single adjudicator to hear the case.

The composition of a panel will vary depending on where you go to school. The panel may, for example, be composed of three individuals, drawn from a pool of faculty, students, and staff who have some “training” in campus judicial procedures. At a trial, you expect to encounter a judge who is an expert in the law and what should and shouldn't be allowed to happen. At a Title IX hearing, you may encounter a faculty member who knows a lot about crustaceans or Milton but little about the actual law. In addition, at least one member of the panel may be a student who doesn't yet even have a college degree.

While the panel has access to the investigator's report, and in most cases, will hear testimony from the investigator, the panel is supposed to give all the evidence in the case a fresh review. In practice, however, most panels ignore this tenet and place a great deal of weight on the report.

One positive: Both sides in the case do have the right to appoint an advisor who can help guide them through the entire process, from investigation to appeal. This advisor can be an attorney. Current Title IX guidelines allow this advisor to represent you during hearing proceedings, including examination and cross-examination of witnesses.

At the conclusion of the hearing, the panel deliberates and reaches a decision as to whether you are responsible for the accusation or not. If you are found guilty, the panel, or another designated party, will assigns penalties. Technically, many possible penalties are on the table, including removal from housing, financial restitution, and mandated therapy. As we noted above, though, suspension is usually the minimum sanction.

It is possible to appeal a panel's findings up the chain of command, which may include the university president or provost. However, you generally may only appeal under very narrow circumstances:

  • New evidence
  • Clear violation of investigation or hearing procedure
  • Clear demonstration of bias on the part of the investigator or panel

Typically, these standards are difficult to meet, and in today's Me Too environment, few campus administrators are willing to overturn a panel's decisions unless there is compelling reason to do so which an experienced Title IX attorney can help put forth on your behalf.

Your Rights

Perhaps the most important differences between a Title IX hearing and an actual trial have to do with your rights. You probably learned in ninth-grade civics, if not before, that you are “innocent until proven guilty” and that you have the right to a fair trial. Given that the school has a built-in reason to investigate and prosecute you, those two principles are already in doubt before an investigation begins.

But the school violates certain of your rights more directly. For instance, to be convicted at a trial, a jury must decide you are guilty “beyond a reasonable doubt.” In addition, you are only convicted if a jury is unanimous in their verdict. Neither of those protections is in place at a Title IX hearing.

The panel or adjudicator uses the “preponderance of evidence” standard to determine guilt, a much weaker guideline than “beyond a reasonable doubt.” Under the preponderance of evidence standard, the panel or adjudicator only needs to determine that it is “more likely than not” that you committed the offense. They're free to have as many doubts as they want about your guilt.

As far as unanimous verdicts, only a simple majority of the hearing panel must agree on your guilt to convict and punish you.

You might reasonably ask why, under Title IX, a school can ignore these courtroom safeguards. The simple answer is that because you aren't being charged with a crime and don't face penalties like jail time, those who make the laws feel it's okay if the university stacks the deck against you.

Of course, as we've already seen, though, you do indeed face stiff penalties under Title IX, penalties that can be every bit as harsh as a prison term. Given this situation, it's hard to justify allowing a school to take judicial shortcuts.

A Law in Flux

Another significant difference between going to court and facing a Title IX hearing is the nature of the law itself. You and your attorneys will know what to expect if you ever need to enter a courtroom as a defendant. Unfortunately, the Title IX procedures seem to change every few years.

Government laws grow and change too, of course. Congress can decide to create new laws or to amend existing laws. The President can choose how they want to enforce laws. And in America, the Supreme Court has the right to judicial review, which means they can decide a law simply doesn't fit with our Constitution.

For the most part, though, our laws don't change all that much from year to year. We have three separate branches of government, and Congress represents their states rather than the national interest, to help minimize the effect of politics on government. True, when a party rises to power, it may try to overturn certain laws, but this is rarely a quick or easy process. Our laws are stable.

Title IX, on the other hand, is largely in the hands of the President. The essence of the law, the part that prohibits sexual discrimination, has remained the same since 1972. However, the President gets to determine the enforcement guidelines.

Those guidelines tend to change quite a bit. For several years, accused students had no guarantee of a hearing at all. A single person, the investigator, investigated the case and determined innocence or guilt. When hearings did take place, the accused didn't have the right to cross-examine witnesses, and advisors were not allowed to speak other than to the student.

In 2011, the Obama administration famously issued the “Dear Colleague” letter to schools, pushing them to vigorously prosecute Title IX cases.

In 2020, the Trump administration issued revised guidelines. Among other changes, these guidelines limited universities' jurisdiction, narrowed the definition of “discrimination,” and restored the right to cross-examination.

Though they didn't solve all the problems with Title IX, these changes were definitely a step in the right direction. However, they are far from permanent. Indeed, no one expects them to remain in place for long. Many schools sued the Trump administration to prevent them from going into effect. Meanwhile, the Biden administration has already promised to do what it can to overturn them.

The bottom line is, you can't be sure today what kind of Title IX hearing you may face if accused of a Title IX violation.

Taking Your Case to Trial

Title IX hearings are no picnic, but you should know: All is not lost if you're found guilty at a Title IX hearing. It's true that you have limited options when it comes to appealing a panel's decision. Fortunately, though, you can file suit in federal court to stay and eventually overturn that decision. And, as we've demonstrated here, in an actual court of law, where justice is equal, you'll have a much better chance of winning.

In fact, more and more students have chosen to pursue justice in the courts once their hearings have concluded. As a recent article in Campus Safety Magazine reports, “Over the last eight years, there have been several hundred lawsuits filed against colleges and universities by students accused of sexual assault by another student. Now, experts say a case is filed every two weeks or so.”

Further, courts are increasingly siding with students. One recent study found that of 298 cases that resulted in “substantive decisions,” students prevailed 151 times, while schools prevailed only 134 times.

It would be far better if Title IX hearings were fair and equitable for both parties, but it is at least nice to know there is some legal recourse to the biased system we have.

You Need a Title IX Attorney

You might think that because you're facing a Title IX hearing instead of an actual trial, you don't need to hire an attorney. The truth is, Title IX cases can be far more complex than trials. In a Title IX case, you're taking on your school and all the resources it has at its disposal. Worse, you're taking on the federal government, who stands behind your school urging it to take action against you. That's not all. You must deal with:

  • Clear biases against you
  • The loss of your due process rights
  • Complicated school rules and procedures
  • Title IX guidelines that are constantly changing
  • The prospect of severe penalties

Beyond helping you deal with all of these issues, an attorney can also keep a record of all the ways in which the school mistreats you under the law. That record can be essential when filing a lawsuit to overturn the school's findings and restore your life.

The fact is you don't just need an attorney. You need a Title IX attorney, someone with knowledge of Title IX and experience handling Title IX cases. You may be tempted to hire your family attorney for the case or to choose someone local you found using a Google search. Those are bad ideas.

Title IX is a federal law, so a Title IX lawyer can represent you no matter where they may be located, no matter where you may be located. When hiring an attorney in such a case, the most important thing isn't where their offices are but rather how much they know about Title IX.

Attorney Joseph D. Lento Knows Title IX Law

If you're facing a Title IX accusation, you may be feeling a lot of mixed emotions. You probably weren't expecting the campus police to show up at your door, and you could well still be in shock. It isn't unheard of, for example, for accused students to develop PTSD. You're probably surprised and hurt that someone you were close to has accused you. You may be confused, anxious, scared. You have a right to be feeling all of these things. You're in a difficult situation, and your school has turned against you.

Take a deep breath and exhale.

Attorney Joseph D. Lento has years of experience defending clients just like you from Title IX accusations across the United States. In fact, he built his career on student sexual misconduct cases. Attorney Lento knows Title IX law inside and out. He knows its history, how it's changed over the years, and what kinds of changes might be in store for it in the current political landscape.

At the same time, Attorney Lento understands colleges and universities. Academic institutions don't work the same way as the rest of the world. If you've ever tangled with your school over a parking ticket, you know this. They can be agonizingly slow, frustratingly bureaucratic, and endlessly complicated. Attorney Lento knows how to cut through the red tape.

Most of all, Joseph Lento is empathetic to your situation. You're probably going to be forced to share difficult, private details about yourself over the next several weeks and months. You may feel embarrassed or ashamed. Joseph Lento knows what you're going through, and he's on your side. He knows your school is mistreating you, and he will do everything in his power to fight for your rights and get you the fair resolution you deserve.

If you or your child has been accused of sexual misconduct, don't wait for the school to act. Act first. Contact the Lento Law Firm today at 888-555-3686 or use our automated online form.

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If you, or your student, are facing any kind of disciplinary action, or other negative academic sanction, and are having feelings of uncertainty and anxiety for what the future may hold, contact the Lento Law Firm today, and let us help secure your academic career.

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