International students come to the United States every year to study. In 2016, 1.2 million international students attended American colleges and universities. Theses students include undergraduate students, graduate students, and students studying in professional programs such as medical school or law school.
Whether attending school in Pennsylvania, New Jersey, or nationwide, international students bring a welcome perspective to American higher education. I remember fondly friends of mine, both from college and law school, that came from places far away. I had friends from all over the world - Europe, Asia, South America including the Caribbean, Africa, and Australia.
Whatever place in the world a student may hail, federal Title IX policies will apply to international students as they do with students from the United States. This is because Title IX protects all college and university students (among others) at all schools in the United States that receive federal funding; regardless of national origin, immigration status, or citizenship status. This will be the case with both students who accuse another of sexual misconduct, known as "complainants" in Title IX disciplinary proceedings, and also students who are accused, known as "respondents."
Title IX policies can have major consequences for any student accused of sexual misconduct, whether the allegations involve sexual violence such as rape, sexual assault, sexual harassment, or any other variation. How Title IX policies can affect international students is of particular concern, however, and students and parents, both here and abroad, must be aware of such potential issues.
How does Title IX affect an international student accused of sexual misconduct in school?
Title IX policies require that colleges and universities ensure that all students are aware of both their rights and obligations under Title IX; this requirement remains valid regardless of a student's immigration status, including undocumented students and international students.
The Department of Education Office of Civil Rights is responsible for a school's compliance with Title IX policies, and although Title IX, in theory, is arguably intended to provide a forum that is equitable for both victims of sexual misconduct and those accused of sexual misconduct, Title IX in practice strongly favors the complainant at the expense of the respondent; this is unfortunately the case whether the accused student is from the United States or is an international student.
For example, the Department of Education Office of Civil Rights requires that colleges and universities take the initiative in ensuring that school Title IX reporting forms, Title IX information, and training about sexual violence is provided in a manner that is accessible to students whose first language is not English / English language learners. In theory, such a requirement seems fair in that legitimate victims of sexual misconduct not be deterred from reporting a concern due to a language barrier. In practice, however, when the accused student is an international student, the same consideration that is provided to a complainant who is an international student will often not be provided to a respondent who is an international student.
What should international students be prepared for when accused of sexual assault at their college or university?
The above-referenced concerns are not limited to Title IX campus disciplinary cases involving an international student (or students). Unfortunately and whether it is intended or not, in many instances, a college or university will often try to treat the complainant as a “VIP" and the respondent as a pariah. The school's Title IX coordinator, campus police or public safety department, and other involved parties will often provide the complainant with personal contact information such as personal cell numbers to ask any questions or express any concerns at anytime, whereas the respondent will not be afforded such consideration.
When the accused student is an international student, the difficulties in responding to Title IX charges can be compounded because: 1) the respondent's college or university, in practice, will often treat the respondent in a less favorable manner than the complainant despite the fact that the Title IX disciplinary process is not supposed to put one student's interests above that of another student's interests while the Title IX investigation and disciplinary process is taking place; and 2) the international student will often be alienated not only due to the inherent flaws of the Title IX disciplinary process, but also because an international student will generally not be as familiar with American customs, including their rights, expectations, and obligations as an accused student, and also in circumstances where the law enforcement is involved in the campus disciplinary case, or may be likely to become involved.
How will an international student who is the complainant in a Title IX case be treated?
The concerns that must be considered when an international student is accused of Title IX violations are Title IX polices turned upside when the complainant is an international student. Title IX policies have an ongoing pattern of favoring complainants' interests over those of respondents.
For example, the Department of Education Office of Civil Rights, also recommends that colleges and universities coordinate with their international office and its undocumented student program coordinator, if applicable, to help communicate information about Title IX in languages that are accessible to these groups of students. Although such consideration is supposed to be afforded to both the alleged victim and the alleged perpetrator of sexual violence or sexual misconduct, in practice, it is not an unlikely scenario when a college or university brings such resources to the immediate attention of the alleged victim, whereas the accused student has to seek such resources on his or her own, or such resources are not brought to the accused student's attention in as timely a manner.
Another example of the potential for one-sided treatment is that the Department of Education Office of Civil Rights recommends that colleges and universities provide complainants who are foreign nationals with information about the U nonimmigrant status (U visa) and the T nonimmigrant status (T visa).
How can the U nonimmigrant status factor into a campus Title IX case?
The U nonimmigrant status is intended for victims of certain crimes who have suffered substantial mental or physical abuse as a result of the crime and are helpful to law enforcement in the investigation or prosecution of the applicable criminal activity. (Although many claims of campus sexual misconduct are not reported by the complainant to local law enforcement, the potential is always a major concern. International students who are accused of campus sexual misconduct are at that much more of a disadvantage because they are not as familiar with American customs, including interacting with law enforcement. Most students who are from the United States will also be at a severe disadvantage.)
How can the T nonimmigrant status factor into a campus Title IX case?
The T nonimmigrant status is available for victims of severe forms of human trafficking who generally comply with a law enforcement in the investigation or prosecution of the human trafficking and who would suffer extreme hardship involving unusual and severe harm if they were removed from the United States.
What can happen to my student visa now that I have been accused of a campus disciplinary charge involving sexual assault?
Title IX guidelines again specifically address what happens when an international student is the victim of campus sexual assault. Although similar considerations apply, an international student who is accused of sexual assault will have more to lose, and not only if he or she is found responsible.
International students often will be studying at an American college or university while on a student visa. Title IX guidelines address the concern of complainants who are on a student visa and do not maintain a full-time course load due to the effects of alleged sexual assault; therefore not being in compliance with their student visa requirements (which is generally taking at least 12 academic credit hours per term). Title IX guidelines do not, however. address the concerns of respondents who cannot maintain a full-time course load, but would be equally at risk of being in violation of their student visa requirements.
Why do Title IX guidelines promulgated by the Department of Education Office of Civil Rights continue to not address concerns that may be shared by both complainant and respondent before a finding of responsibility is made? Should a respondent not be afforded the basic right of being presumed innocent of the Title IX charges?
If I am charged with Title IX violations, can I drop below a full-time course load as an international student?
The Department of Education Office of Civil Rights recommends that a college or university ensure that international students on student visas understand that they must generally seek prior approval of the designated school official (DSO) for student visas to drop below a full-time course load (again, 12 academic credit hours in most instances). Reflecting the arguably one-sided nature of Title IX, however, the DOE-OCR encourages colleges and universities, through schools' Title IX offices or Title IX coordinators, to approach the respective school's designated school official (DSO) on the complainant's behalf if the complainant would like to drop below a full-time course load. Again, why are international students who are respondents not afforded the same consideration?
Can being accused of sexual misconduct at college affect my student visa?
Although Title IX policies recommend that investigations and proceedings be completed within 60 days unless there are extenuating circumstances, it must be understood that many Title IX cases take longer than the 60 days as recommended by the Department of Education Office of Civil Rights.
Because Title IX cases can last for longer than may be anticipated, even being accused can put an international student's student visa at risk. If an international student is accused of campus sexual misconduct and cannot maintain a full-time course load while the Title IX investigation and disciplinary process takes place, an international student's student visa will be at risk.
For example, and unfortunately often only after a finding of responsibility has been made, students and parents have called me to inquire about Title IX cases that have lasted for months. It cannot be emphasized strongly enough that an accused student and his family must take all necessary steps as early as possible to try to achieve the best possible outcome when faced with Title IX charges; being found responsible, sanctioned, and thereafter trying to mitigate the damage after the fact at a school's appeal stage is not an effective strategy. It is possible to win an appeal, but it is not easy. Unfortunately, some international students and parents do not recognize the potential severity of the circumstances until after the fact, and in many instances, after it is too late.
Can an international student who is found responsible for Title IX charges be deported?
By extension of logic, if an international student is found responsible for campus sexual misconduct, and is either suspended or expelled from school, the student's student visa will be in serious jeopardy because the international student will not be able to maintain a full-time course load because he or she will not be able to continue as a student in the United States either temporarily (if suspended and if able to return to school on a student visa at a later time; for which there is no guarantee) or permanently (in cases involving expulsion).
Because a student found responsible for Title IX charges at his or her college or university will be often be suspended at a minimum, and the prospect of expulsion is also likely depending on the nature of the allegations, an international student and his or her parents have that much more to be concerned about because the risk of no longer being able to remain a student in the United States is a major potential consequence.
Nationwide Title IX Student Defense Attorney
After having worked so hard for so many years to go to college or graduate school, the unfortunate reality is that any student facing Title IX charges faces serious potential consequences. A young person's entire future, both academically and professionally, can be at stake. The stakes will be that much higher when an international student is accused of Title IX violations. It can be difficult enough adjusting to American culture as an international student, but when faced with Title IX charges, an international student may not only have no one to turn to to help, he or she may not understand the full implications of what is at stake, including how a student visa can be affected, and also the continued prospect of remaining as a student in the United States.
An international student must make certain his or her interests are represented and protected when facing a Title IX campus disciplinary case, and attorney Joseph D. Lento can help - contact him today.