Complete the below form to be emailed the Lento Law Firm's complimentary guide to the Title IX sexual misconduct disciplinary process at colleges and universities. There is no obligation and we will promptly follow up with you as we are here to help. The guide includes information such as the following:
- The History Of Title IX
- The Title IX Process
- Title IX Penalties
- Your Rights Under Title IX
- What To Do If You're Accused
The following is a sample of the downloadable guide:
It Can Be Difficult to Get Access to Evidence
Whenever the investigation is complete – and the rules don't set a specific time frame, meaning it can go on for months or longer – the school has two choices about how to provide the evidence gathered by the investigator. One option is for the school to give both the complainant and the accused “equitable access” to the “relevant and not impermissible evidence” gathered by the investigator. A second option is for the school to provide both parties with a copy of the investigator's report “that accurately summarizes the evidence” and only allow “equitable access” to the underlying evidence itself if one of the parties asks for it.
Even when the school provides “equitable access” to the actual evidence, questions remain. Does that mean that schools are required to provide access to the actual evidence? Or will schools refuse to allow both parties to review some or all of the actual evidence and claim that this satisfies the “equitable access” requirement? And because the school determines what evidence is relevant and not impermissible, it's almost a given that some of the evidence collected during the investigation won't be disclosed to the parties because the decisionmaker has determined that it's either not relevant, or is impermissible.
In almost every case, an accused will want to be able to review all of the actual evidence that has been collected during the investigation, not just a summary of the evidence created by a potentially biased investigator, or just the evidence that is being used against them. It's easy to imagine a scenario where a decisionmaker decides certain evidence is not relevant when, in fact, it may help the accused defend themselves against the Title IX allegations. This is yet another example of how Title IX investigations and processes are much less fair to the accused than are civil and criminal cases. It's another reason why working with an experienced student defense attorney can make a difference – your lawyer can push for advanced access to all of the actual evidence that the school has collected in connection with the Title IX investigation.
Schools Can Play Games With Reasonable Access
The Title IX rules require schools to give both parties a “reasonable opportunity to review and respond” to either the evidence that has been collected or the investigator's report. If the school does not permit live hearings of Title IX disputes, this must happen “prior to the determination of whether sex-based harassment occurred.” However, the rules don't say exactly when that opportunity to review and respond to evidence must take place in situations where the school does not allow a live hearing.
In cases where schools elect to use live hearings to resolve Title IX disputes, this opportunity to review and respond to the evidence can happen “prior to the live hearing, during the live hearing, or both prior to and during the live hearing.” In other words, schools that conduct live hearings can wait until the hearing itself to allow both parties – including, of course, the accused – to review and respond to the evidence, which again is likely to put the accused at a significant disadvantage. If the first time you or your attorney sees the actual evidence being used against you is during the live hearing, it's likely to be much more difficult to respond effectively to it.
Don't Count on Confidentiality
When it comes to keeping Title IX investigations and proceedings confidential, the Title IX rules state that schools must “take reasonable steps to prevent” the “unauthorized disclosure” by the parties (and their advisors) of information that is obtained “solely” through the Title IX investigation process. This requirement doesn't apply to third parties who may be interviewed as part of the investigation, nor does it restrict anybody from talking about the fact that a complaint has been made or that an investigation is taking place. As a practical matter, there is very little that schools can do to prevent anyone from sharing information about a Title IX complaint. Once the Title IX investigation begins, you can expect that word of the investigation will quickly leak out.
With the substantial amount of leeway that the Title IX rules give schools to conduct investigations of Title IX complaints, determine what evidence is relevant, and disclose that evidence to the accused, it is important to be working with an experienced student defense attorney who can make efforts to ensure that the process is as fair and complete as possible.
The Process to Determine Guilt or Innocence
Schools are no longer required to conduct formal hearings to resolve Title IX allegations. They may do so – and some schools may choose to use or continue to use a “live” hearing process to resolve Title IX allegations – but they are not required to. As noted above, all that the most recent Title IX rules require is that the school “provide a process that enables the decisionmaker to adequately assess the credibility of the parties and witnesses” – but only “to the extent credibility is both in dispute and relevant” to resolving one or more of the Title IX allegations.
The Title IX rules provide different guidelines depending on how schools decide they want to resolve Title IX disputes. These include:
- Individual Meetings. The decisionmaker asks questions of parties and witnesses during individual meetings, including follow-up questions and questions to test their credibility. Each party can propose questions for the decisionmaker to ask; the decisionmaker can accept or reject the suggestions.
- Live Hearing With Questioning by the Decisionmaker. Both sides are present (either in person or remotely) for a live hearing where the decisionmaker asks initial and follow-up questions of the parties and witnesses. Both sides can propose questions, but it's up to the decisionmaker what questions to ask.
- Live Hearing With Questioning by the Parties' Advisors. Both sides are present (either in person or remotely) for a live hearing where their respective advisors ask the parties and witnesses questions. The decisionmaker can decide when questions are “relevant and not otherwise permissible.” Note that the parties themselves – the complainant and the accused – are never allowed to ask the questions. If one of the parties does not have an advisor, such as an attorney, the school must provide one – of the school's choice, not the party's.
If one of the parties proposes a question, the decisionmaker is required to determine whether the question is relevant and permissible before the question is asked. If the decisionmaker refuses to allow a question, they must explain their ruling. If the question is relevant and permissible, then it must be allowed – except where the question is “unclear or harassing of the party being questioned.” What's “unclear or harassing” is, of course, up to the decisionmaker.
Note that there is no requirement for schools to use more than a single decisionmaker in connection with Title IX disputes.
Other than these general guidelines, schools are free to “impose other reasonable rules, regarding decorum” if those rule apply “equally to the parties.” Which means the process can vary from school to school.
One important thing to remember is that schools are only required to hold meetings or hearings in cases where the decisionmaker determines that credibility is both in dispute and relevant. If the decisionmaker reviews the evidence collected during the Title IX investigation and decides that it's clear and there are no relevant credibility issues, the school can skip the meeting/hearing stage and simply issue a ruling.
All of this leaves schools with a tremendous amount of leeway when deciding what their Title IX resolution process will look like and how it will operate. No matter what process a school selects, it's fair to say that the accused has far fewer procedural rights and protections than they would have in a criminal proceeding. This is why it's so important to retain an experienced student defense attorney if you're accused of a Title IX violation. You will need their help at almost every step to protect what limited rights you have....(the guide continues)
The Lento Law Firm Can Help - Contact Us Today!
Contact the Lento Law Firm at 888-535-3686 so that your rights are protected from as early as possible in the Title IX process, and again, complete the above form to receive the Lento Law Firm's full guide titled - "What to What to Do If You've Been Accused of Title IX Sexual Misconduct."
