Let's not beat around the bush. After all, you came here looking for answers.
If you or someone you know has been accused of sexual misconduct, the situation is serious, and you need to treat it seriously. Your very first concern: Hire a skilled Title IX attorney immediately.
Colleges and universities investigate and prosecute cases of sexual misconduct using Title IX, a federal law that protects students from various forms of discrimination and harassment. Title IX procedures are messy. The law provides very few rights to the accused.
Penalties in such cases are typically severe. Your school may try to suspend you immediately, even before it begins an investigation. If you're ultimately found responsible, suspension is often the minimum penalty you'll face. More likely, your school will expel you, and for good measure, your school may even include a transcription notation describing the nature of your offense. A transcript like that means you'll have trouble finding another school to accept you.
In short, you cannot handle this situation alone. The complainant, and by extension, your school, will come after you with every resource they have at their disposal. You cannot contact your accuser and “sort it out.” The problem is not going to “blow over” or simply “go away.” This isn't a traffic violation or a citation for shoplifting. You need an attorney. Why? We'll get into that. In the meantime, start making some phone calls now.
What to Expect First?
First things first, if you expect someone may make an allegation against you, for whatever reason, you need to go ahead and act now, before the situation develops further. Maybe you've heard from your accuser, or through the grapevine, that they've already filed a formal accusation. Whatever the case, if you know an accusation may be coming, call a qualified Title IX attorney immediately.
It could be that the charges against you will come in the form of a letter, formal notification that you're being investigated with information about your rights under the Title IX procedures. Getting a letter like that can be upsetting enough. However, it's also possible you may wake up at three in the morning to find the campus police knocking on your dorm room door and demanding to search your room.
This is one reason why it's better to have an attorney beside you from the beginning. Your attorney's very first job, as soon as you hire them, is to find out the state of your case. That means they will immediately call the school and ask whether you've been accused. You'll know what to expect, so you'll know if the police are on the way. In fact, in most cases, your lawyer can help you avoid the ugly public spectacle of an arrest altogether.
Once you've contacted an attorney, there are things you can do to begin preparing your case.
- Start by preserving any evidence. Don't discard anything. You may think an email you sent to the complainant makes you look like a jerk, but your attorney may know how to use that email to prove your innocence.
- Next, take the time to write up a complete narrative of what happened. Again, don't spare any details. Your attorney needs to know everything so they can come up with the best strategy to defend you.
- Make a list of any potential witnesses. Who was around at the time the incident allegedly occurred? Can anyone provide you with an alibi? Don't limit this list to “friendly” witnesses. List everyone. Your attorney needs to know upfront what might be testifying against you.
A Brief History of Title IX
Now, let's back up a little. What is Title IX exactly, and how did you wind up accused of violating it?
Title IX is a federal law passed in 1972. Its original aim was to curtail sexual discrimination and harassment at all education institutions, especially colleges and universities. Lawmakers enacted Title IX with good reason: campuses could be openly hostile places for women before 1972. However, as the law has evolved, it has sometimes created as many problems as it has solved.
As part of Title IX, the government included a mechanism designed to ensure that all schools comply. Any school that refused would lose its federal funding. On its surface, that seems like a reasonable stipulation, and early on, it was.
As the law evolved, though, two big problems developed. First, discrimination wasn't used in the usual everyday sense of that word. Rather than “unequal treatment,” discrimination came to apply to a whole host of misbehaviors and even outright crimes. Essentially, the courts ruled that “discrimination” means absolutely any sex-based act by any person that interferes in any way with a woman's ability to get an equal education. That doesn't just include unfair grading practices. Under Title IX, stalking is sex-based and inhibits a person's right to an equal education. So are sexual assault and rape.
Obviously, schools can't assault their students. This is where the other big problem comes in. As it developed, Title IX didn't just demand that schools themselves not harass anyone on the basis of sex. They insisted schools prevent their students from harassing anyone too.
Here's where it all gets complicated. Title IX wasn't written to punish students, and it has no authority to do so. Violating Title IX isn't a criminal offense. By insisting schools become sexual discrimination-free zones, though, the law put the burden on schools themselves to punish their students.
As you might imagine, that situation has created some problems. Chief among them: schools must investigate and prosecute their students in order to save themselves from being prosecuted. That creates an inherent bias, with schools now desperate to investigate and punish absolutely any accusation, no matter how spurious it may be.
Bias isn't the only problem, though. The fact is, physics professors and third-year economics students just aren't prepared to deal with serious crimes like sexual assault. These people are undoubtedly smart; they are likely well-meaning; they may even have received some training in their school's judicial policies. They aren't judges, though, and they aren't qualified to preside over rape cases.
Over time other problems have come up as well. A series of presidential administrations have implemented Title IX guidelines that have stripped defendants of important due process rights. The Me Too movement has put enormous pressure on colleges and universities to be even more vigilant and harsh in their treatment of accused offenders. A guilty verdict today can have more impact than a jail sentence.
Title IX Investigations
What happens when you're accused?
A criminal investigation by the police may sound like a scary proposition. It is. At least the police are trained to investigate crimes, though. While Title IX does require training for its "investigators,” an associate literature professor who spent a few hours looking at slides in a conference room is not the same thing as a career detective.
A Title IX investigation starts with an allegation. Every college and university has a Title IX officer and usually an entire Title IX office. The person who has accused you ultimately made a formal complaint to this office. It is the Title IX officer's job to decide whether or not to investigate a complaint. Of course, given the pressure schools face from the federal government, they generally commission an investigation into every complaint, no matter how frivolous or unfounded it might seem.
Once they've decided to pursue an allegation, the Title IX officer appoints an investigator. Some schools use members of the campus police as Title IX investigators. Some even hire outside professionals to investigate. Title IX doesn't require the investigator have any particular qualifications, though. Many schools simply appoint an administrator or faculty member to do the job and pay for them to take a 2-3 day webinar on investigative techniques. Some don't even do this much.
The first thing an investigator is supposed to do is contact both parties and formally apprise them of the investigation. They should contact you and let you know exactly what you've been charged with. In addition, they will let you know your rights. Among these, you have the right to appoint an advisor to help you with the case. This advisor can and should be a Title IX attorney.
Some schools may offer you other services, such as access to free counseling.
Once you've been formally accused, one of your first worries is whether the school will suspend you. Most schools will try to do this, justifying it as “protecting the campus community.” However, your attorney can fight this.
You should know that you won't be allowed to walk away from the case. It isn't like a parking ticket. Even if you should decide to withdraw from the university, they are obligated to continue their investigation. They will try and find you responsible in absentia if necessary and expel you, even if you've already left the school. They can include a notation on your official transcript about the findings and can even contact schools where you've enrolled to let them know about your case.
The investigator will want to question you about what happened. They'll question your accuser as well. You need an attorney at your side when you are questioned, someone who can advise you when to answer and when to stay silent, as well as what to say when you do speak.
The investigator will also question any witnesses in the case. The investigator may have compiled a list of witnesses, but you and your attorney should create your own list of people the investigator should talk to.
Finally, the investigator will also collect any physical evidence in this case. This can include clothing, dorm logs, texts and emails, photos or videos—anything that might shed light on what happened.
Once the investigator has accumulated all the evidence in the case, they will issue a written report. They must complete this within a specified time frame, usually 45 or 60 days. You and your attorney will have ten days to respond to this report before handing it over to the Title IX office. The complainant will have a chance to respond as well.
Title IX Hearings
Once the investigation is complete, the case will move into a hearing phase.
Under current Title IX procedures, you have the right to a live hearing, though either side may request this hearing be conducted via closed-circuit video.
Once the Title IX office receives the investigator's report, they will set a hearing date and appoint a judicial panel to hear the case. They will provide you with formal notification of the hearing and generally will not accept requests for a change in date or time.
A Title IX hearing panel typically consists of three individuals drawn from a pool of students, faculty, and administrators who likely have had minimal training in and experience with the school's judicial procedures.
At the hearing, you may make an opening statement, but you must make it yourself. You'll also have to make your closing statement, should you choose to make one.
However, your attorney may speak on your behalf throughout the rest of the hearing. They are allowed to question and cross-examine witnesses, including the complainant, and raise any objections to the procedure on your behalf.
Title IX hearing panels don't use the well-known “guilty beyond a reasonable doubt” standard to find you responsible. In fact, virtually none do. Instead, most use the much less stringent “preponderance of evidence” standard. According to this standard, panelists must only decide whether an event is more likely than not to have occurred. Many legal experts refer to this as the 51% standard, since essentially, it means they must only be over fifty percent sure you are guilty.
Another critical difference between Title IX hearings and actual trials is that the panel doesn't have to be unanimous in its decision to find you responsible. A simple majority is enough.
Whatever the panel's decision, both sides in the case are entitled to appeal. Those appeals are usually made to either the university president or the provost. That individual has the final say in the matter. However, you may only appeal for very specific reasons:
- If new evidence in the case should arise
- If you can demonstrate clear bias on the part of the Title IX office, the investigator, or the panel
- If you can demonstrate some important part of the Title IX procedures was ignored
Most schools give lip service to the idea that they have many possible sanctions for Title IX violations. These, of course, vary from school to school. Some mention removal from housing, others talk about mandated counseling or restitution, and a few even bring up victim-offender mediation.
The reality is, the minimum penalty you'll face if you're found responsible in a sexual misconduct case is suspension. This, of course, can disrupt your academic career. It can throw off your graduation plans, make it harder to obtain the credits you need, even put your financial aid in jeopardy.
Far more likely, though, the school will expel you if you're found guilty. If you're attending a school that's part of a state network of colleges and universities, you'll probably be prohibited from enrolling at any of them. In addition, as we've already mentioned, many schools include a transcript notation when they expel you, explaining the reason for your expulsion. This notation generally makes it unlikely another school—even one in a different state—will accept you. Some schools will allow you to petition to have this notation removed after some length of time, usually five to ten years, but by then going back to school likely won't be of much value to you.
What Can an Attorney Do for You?
How exactly can an attorney help with all of this? What can they do to protect you during a Title IX investigation and hearing? They can take care of you from start to finish, helping to guide you through the process and safeguarding your rights.
- Before you've been accused, an attorney can make sure the school takes your side of the story into account before deciding whether to proceed.
- An attorney can negotiate with campus police to keep you from being publicly arrested.
- An attorney will prepare you before you talk to the investigator, making sure your story is straight and coaching you on how to stay calm.
- An attorney will accompany you to any interviews with the investigator and advise you when to talk and when to remain silent.
- An attorney will help you collect evidence in the case, including witness testimony.
- An attorney will help you look over the investigator's report and respond to any errors.
- An attorney will help you prepare a defense in your case.
- An attorney will sit by your side at the hearing and advise you every step of the way.
- An attorney will examine and cross-examine witnesses on your behalf.
- An attorney will present evidence on your behalf.
- An attorney will raise objections on your behalf.
- An attorney can help you file an appeal.
- An attorney can handle media inquiries.
- An attorney can represent you if the police charge you.
Legal Recourse if You Lose Your Title IX Case
If you've been reading carefully, you may have noticed that the Title IX process isn't particularly fair to the accused. There are several ways in which schools regularly violate an accused student's rights. As a result, it can be challenging to win a Title IX case.
However, that doesn't mean that you must simply accept a guilty verdict should you receive one. Of course, your Title IX attorney will do everything in their power to reach a settlement that is in your best interests, should you lose your case, though you do still have options.
In the last ten years, many students have chosen to file suit in federal court to overturn the judgments against them, and many are succeeding. Increasingly, federal courts have come to recognize that the Title IX process violates many of a person's due process rights. Courts have discovered, for instance, that many schools are grossly biased from the very beginning in favor of complainants. Investigators often refuse to accept evidence from the accused. In a 2018 case, a court uncovered that investigative training manuals at the University of Mississippi instructed investigators to treat complainant lies as evidence complainants were telling the truth.
One of a Title IX attorney's most important jobs is to keep a thorough record of all the ways your school has violated your fundamental rights. This record then becomes the groundwork for filing a civil suit.
How Can Attorney Joseph D. Lento Help?
We'll end this guide the same way we began it. If your school has accused you of sexual misconduct, you don't want to see what will happen. Contact a qualified Title IX attorney today. Contact Joseph D. Lento.
Attorney Joseph D. Lento has years of experience with Title IX cases. He's defended hundreds upon hundreds of students just like you facing Title IX cases across the United States. He doesn't just take occasional cases: he does this day in and day out. He knows the law and how colleges and universities try to bend that law to their own purposes. He'll do everything in his power to stop them, and if he can't, he'll make sure you are fully prepared to challenge them in an actual court of law. Joseph D. Lento is dogged when it comes to protecting your interests. He'll fight hard to get you every right you deserve.
At the same time, Joseph D. Lento is empathetic towards your situation. He understands what you're going through and that you're being mistreated. He knows just how unfair the entire Title IX system has become. Joseph D. Lento will be right by your side, talking you through every aspect of the case and helping guide you every step of the way.
If you or your child has been accused of a Title IX violation, don't wait. Contact attorney Joseph D. Lento and the Lento Law Firm today at 888-555-3686, or use our automated online form.