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What Notice is Required Before a College Questions an Accused Student About a Title IX Complaint?

Posted by Joseph D. Lento | May 16, 2018 | 0 Comments

Having fought in the trenches of Title IX for a decade, I have come to witness firsthand major differences between how different colleges and universities handle sexual misconduct disciplinary proceedings.  This is the case regardless of whether an accused student's school is in New Jersey, Pennsylvania, or nationwide
 

Different Schools, Different Approaches

Of course the basic differences are important such as whether a school uses an investigative model, a hearing model, or a combination of both concepts.  There are other important differences such as the college or university's definition regarding sexual misconduct, sexual assault, sexual harassment, dating violence, and so forth.  A school's definition regarding consent can also have a major impact on how to best defend against Title IX charges. 
 
Students and parents call me at different stages during the investigative process, whether it is before anything has taken place and there is only the prospect of concern, before meetings and interviews (interrogations if not properly handled) have taken place, before a Title IX investigation has concluded, before a Title IX hearing has taken place, and for better or worse, after an accused student is found responsible and consequently sanctioned.  As much as I can help through all stages of the disciplinary process, the reality is that the earlier I am involved in an accused student's case, the better.  I am a down-to-earth person and my stating as such is not my being boastful, it is reality and it is also a reflection of how quickly a Title IX case can go off the rails if the necessary steps are not taken as early as possible in the process; one such step in understanding your rights and making certain you have an experienced advisor up for the potential fight.
 

"Schools' Responsibility to Address Sexual Misconduct"

One such step is related to what is often the most stark difference among how different colleges and universities approach Title IX cases: the notice that a school provides (or does not provide) to an accused student (and by extension, to the accused student's parents and family).  The notice that a school provides to an accused student, or lack thereof, can set the tone - good, bad, and otherwise - as to whether it will be a fair fight for the Title IX respondent, or whether it will be a kangaroo court.
 
Who sets the overall (required) tone for campus Title IX cases?
Because Title IX is federal law which is overseen in large part by the Department of Education Office of Civil Rights (DOE-OCR), the Secretary of the Department of Education is instrumental in determining specific Title IX policy and procedure. 
 
After Secretary of Education Betsy DeVos was confirmed in February 2017, one of the early steps that she took to address Title IX concerns, and more specifically, the lack of rights provided to accused students (often male), was to issue a "Q & A on Campus Sexual Misconduct" in September 2017.  The focus of the "Q & A" was "Schools' Responsibility to Address Sexual Misconduct" and was a 7-page document consisting of 12 questions and answers aimed at clarifying school's responsibilities to both complainants and respondents in Title IX disciplinary proceedings. 
 
One question in particular - Question 6: What constitutes an "equitable" investigation? - strikes at the heart of how schools can overlook accused student's rights, whether unintentionally or intentionally, in how Title IX charges are investigated and ultimately adjudicated.  Part of the answer to Question 6 reads as follows and is critical to note before speaking with anyone at a college or university:
The Office of Civil Rights requires that "Once [a school] decides to open an investigation that may lead to disciplinary action against the responding party, a school should provide written notice to the responding party of the allegations constituting a potential violation of the school's sexual misconduct policy, including sufficient details and with sufficient time to prepare a response before any initial interview. Sufficient details include the identities of the parties involved, the specific section of the code of conduct allegedly violated, the precise conduct allegedly constituting the potential violation, and the date and location of the alleged incident.  Each party should receive written notice in advance of any interview or hearing with sufficient time to prepare for meaningful participation."

The full text is contained in the following link: https://www2.ed.gov/about/offices/list/ocr/docs/qa-title-ix-201709.pdf
When a Title IX complaint is made, whether by the complainant her or himself, or "responsible" party (a party obligated to report any such concerns to the school such as an RA, athletic coach, professor, and so forth, or anyone else, the applicable parties at the school will consider the complaint and take what they believe is appropriate action; applicable parties involved in such matters are often the Title IX coordinator, the Title IX investigator(s), the school's attorney(s) or Office of General Counsel, and other administrators as necessary. 
 
One concern (of many) is that I have noticed that many schools fail to provide sufficient notice to an accused student as required under the September 2017 OCR guidelines. 
An important caveat to the above is that although the September 2017 OCR guidelines will be used by the Department of Education Office of Civil Rights in determining a school's compliance under Title IX, colleges and universities may regard these guidelines as not mandated "law" in the traditional sense.  In doing so, schools may believe that they are doing what they need to do under their existing policies to remain in compliance with Title IX and if a respondent wants to pursue the matter further if they believe they are receiving unfair treatment or get an unjust result, they would be free to pursue  recourse on their own accord.  In other words, a school can have the following rationale - "This is how we do things.  If you feel wronged, feel free to follow up as you believe appropriate."  Unfortunately, his is obviously not an ideal (or appropriate) perspective when the Title IX disciplinary process is supposed to be fair and impartial in addition to the fact that a respondent's academic and professional future is on the line.

Once a Title IX claim is made...

Combating campus sexual assault is of course a goal which no one can argue with from a fundamental standpoint, but because of the unfortunate dynamic behind Title IX that makes it likely that a college or university will aggressively pursue claims against a respondent often with no regard for the respondent's rights or interests, the reality is that once a report is made, it is all but guaranteed that the school will "decide to open an investigation that may lead to disciplinary action against the [respondent]".  (The reason I have the end of the previous sentence in quotes is because it is taken directly from the September 2017 guidelines issued by the Department of Education Office of Civil Rights.)
 
The additional reality is that once a report is made, the college or university will open an investigation, and in doing so, the accused student will at some point be asked (demanded is an arguably more accurate description) to meet with the necessary parties at the school regarding the matter; the necessary parties often being the Title IX coordinator and/or the Title IX investigator(s) and potentially others (all of whom who consider the respondent's interests last, if at all). 
 
Unfortunately, accused students and their parents at times do not recognize what is at stake when any communications of any kind are made to the school (or anyone else for that matter - an accused student's friends and classmates, campus police officers or public safety officers, resident assistants, athletic coaches, and so forth).  This serious concern remains whether communications are made in-person at a meeting / interview, by email, or over the phone.  As unrealistic as courtroom dramas and police TV shows can be, the fact that "what a person says can be used against him/her" is profoundly true; especially in a Title IX proceeding.
 

Everyone at your school recognizes what is at stake, you must also.

Colleges and universities recognize what is at stake, but unfortunately, in most instances, unless there is oversight, the notice that is provided to an accused student is severely lacking.  The unfortunate consequence is that an accused student is put at a severe disadvantage when potentially having one of the most important conversations of his or her life.  When the notice provided by schools that comply with the September 2017 OCR guidelines is compared to the notice provided (or lack thereof) by schools that do not comply, the difference is like night and day.
 
I handle Title IX cases throughout the nation, and one school in particular at which I regularly advise accused students utilizes an independent large law firm to investigate and adjudicate its sexual misconduct cases.  The attorney at the law firm who investigates the claims was previously employed by the Department of Education Office of Civil Rights.  When she provides the required notice to the accused student, it is clear that she follows the September 2017 OCR guidelines to the letter
 
When this notice is compared to the notice provided by schools that do not comply with the September 2017 guidelines, it is extremely concerning to see because, unless the necessary steps are taken in advance of such a meeting, I know how disadvantaged an accused student can be when he or she is meeting with a Title IX investigator, and often a team of investigators and other parties who certainly do not prioritize the respondent's rights and interests.  When the September 2017 OCR guidelines are not followed as required, the accused student is going into such an interview "blind" or with negligible information at best.
 

Dear John, you must report at 9 AM to speak about a matter...in which your entire future is on the line.

A hypothetical of how lacking such notice can be when a college or university does not respect the September 2017 OCR guidelines is as follows: 1) A complaint of sexual misconduct against "John" is received by the University Title IX Office; 2) the University's Title IX decides to open an investigation into the matter; 3) the University Title IX coordinator emails John the following:
"Dear John, a sexual misconduct complaint against you has been received by this office.  You are instructed to report on 9 AM to discuss this matter." 
How can anyone prepare themselves for such a meeting or conversation when such so-called notice is all that is provided?  (Although the above is merely an example, it is comparable to the insufficient notice provided by many schools to accused students.  Some schools will provide the potential violations or the alleged victim's name or other basic details, but overall, the school's efforts to comply with the required notice is severely lacking in most instances.)
 
When the notice required per Question # 6 of the September 2017 OCR guidelines is compared to the notice given in the above hypothetical, it is clear how disadvantaged such an accused student will be by having any such conversations with the school based upon such lacking information.  Again, per Question # 6, notice is required as follows:
"Sufficient details include the identities of the parties involved, the specific section of the code of conduct allegedly violated, the precise conduct allegedly constituting the potential violation, and the date and location of the alleged incident.  Each party should receive written notice in advance of any interview or hearing with sufficient time to prepare for meaningful participation."
Unfortunately, many colleges and universities operate in such a highly-questionable manner, whether due to indifference, an attempt to make their jobs as easy as possible, or an active effort to have the respondent not be able to exercise his or her rights as designated by the Department of Education Office of Civil Rights.  Most schools recognize that an accused student, and the accused student's parents when even informed by the student (which is another consideration and concern altogether because not all accused students will inform their parents until it is too late), will not and do not advocate for themselves or know to protect their interests by demanding that the notice requirements of the September 2017 OCR guidelines be followed.
 
Those who have fought in the trenches of Title IX understand that sufficient notice must be provided for an accused student to be able to prepare as best as possible before any meetings take place with a school  because ultimately. preparing in advance of any conversations with anyone at a college or university regarding a Title IX complaint is critical, and the familiar adage rings true - "Those who fail to plan, plan to fail" - and there is no room for error in a Title IX case.
 

The necessary steps must be taken as early as possible to defeat a Title IX charge.

Colleges and universities, as much as we would like to believe otherwise, are not necessarily altruistic bastions concerned with giving everyone a fair shake.  Granted, not all schools operate in such a concerning fashion, but at the end of the day, if a student is facing a Title IX finding of responsibility and a potential sanction of suspension, expulsion, or anything else, again, no one at the school is losing sleep over such an outcome.
 
People who recognize both what is at stake when accused of Title IX charges and also that they have to look out for themselves know that they need every advantage they can possibly have when defending against such potentially-impactful concerns.  An experienced Title IX advisor attorney can (and should) serve such an important role and will be able to push back when a school inherently starts to overlook or impede upon a respondent's rights.  A school advisor or anyone without the necessary experience and fortitude is not suited for the task. 
 
Do not make the mistake of taking a Title IX case not as seriously as is necessary.  The earlier the necessary steps can be taken, including putting the school on notice (as necessary) that an accused student and his or her advisor will demand the rights afforded under the September 2017 OCR guidelines is the first step in achieving a favorable outcome in what can be a difficult path forward.  The path can be difficult enough - Make certain that the path is made as smooth as possible by having someone dedicated to an accused's cause and someone who has fought and won hard fights. 
 

National Title IX Attorney Advising Accused Students and College Employees Nationwide

Having to face sexual misconduct charges is never easy; especially when having to live one's life and to have to attend to academic, professional, and personal demands all the while fighting for one's future.  An accused student or college employee should not go it alone or without the right person in one's corner.

Attorney Joseph D. Lento has fought in the trenches of Title IX for a decade and he does not back down in the face of adversity.  Contact him today online or at 888-535-3686.

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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