When Should College Students Get a Title IX Defense Lawyer?

Jul. 23, 2019 By

If you or your child has been accused of sexual assault or sexual harassment by another student on campus, you need to consider hiring a specialized Title IX defense lawyer as soon as possible.

Title IX of the Civil Rights Act is a federal law that prohibits colleges and universities from discriminating on the basis of sex. The law applies to public as well as private institutions which receive federal funding.

Title IX has been used by claimed victims of sexual misconduct to seek remedies against colleges that allegedly don’t take enough action against the persons accused of misconduct. 

During the Obama Administration, the Department of Education’s Office for Civil Rights put pressure on colleges and universities to aggressively support the victims of alleged sexual misconduct in their campus policies and university investigations. It also lowered the burden of proof for a university to prove the guilt of an accused by a mere “preponderance of the evidence” (effectively, a 50.01% likelihood) versus a “clear and convincing evidence” standard (a 70–75% likelihood). As a result, many schools heavily weighted their disciplinary process and hearing procedures in favor of a complainant and against the accused. Despite efforts by the Trump Administration to make colleges more fair-handed, that continues to be the case today.

However, courts have ruled that Title IX forbids imposing university discipline where gender is a motivating factor in the decision to discipline. 

The Need for a Title IX Lawyer as Early as Possible

Due process and fundamental fairness have been interpreted through the Clery Act to allow you to be advised by counsel in connection with Title IX college disciplinary proceedings. A Title IX defense lawyer will ensure that the university follows its published standards for a fair hearing, gives you access to the accuser’s statements and documents, enables you to provide witnesses and documents for consideration, and allows for an opportunity to submit questions to cross-examine the accuser and her witnesses. If not, or if there is any hint of gender bias by the decision makers, a Title IX lawsuit can be filed on your behalf in federal court against the school.

This is a complex and evolving area of the law, and every case and every school are different despite the general requirement for fairness in the college’s adjudication process. The earlier you involve a specialized Title IX defense lawyer, the more likely it is that your rights will not be trampled and you will not receive a suspension, expulsion, or a permanent negative transcript notation that can all but ruin your chances of admission to a desired graduate school or employment opportunity.  

The Title IX defense attorney will help you navigate every step through the in-school procedures appearing as advisor at all meetings and to set the record so that the school’s disciplinary process can be attacked in a Title IX case if the process ends in an unfavorable result. 

Cases Upholding Title IX Claims Filed by the Accused Against Colleges

Recent cases have identified deficiencies in school disciplinary hearings and adjudications and courts have refused to dismiss Title IX cases brought by the accused.

For example, in New York, a court pointed to the fact that the investigator and the hearing panel declined to seek out potential witnesses the accused had identified as sources of information favorable to him. The court also found credible that the investigator and the panel failed to act in accordance with university procedures designed to protect accused students. The investigator, the panel, and the reviewing Dean all reached conclusions that were incorrect and contrary to the weight of the evidence.

The court stated an accused person is “entitled to succeed, even absent evidence of illegitimate bias on the part of the ultimate decision maker,” so long as a biased person (in this case the university’s Title IX administrator and investigator) who had institutional influence “played a meaningful role in the process.” 

A similar result was reached in a recent case at Syracuse University where the woman repeatedly contradicted her story, the university failed to interview all of the relevant witnesses, failed to follow its own procedures for the hearing designed to protect accused students, and assumed the complainant was correct and the accused incorrect.

Bias against men has also been found where a university or college has been under public scrutiny for allegedly not being supportive enough of women’s sexual misconduct claims. To turn off the heat, many schools began to make their disciplinary procedures biased against men and that is prohibited by Title IX.

A university that adopts, even temporarily, a policy of bias favoring women over men in a disciplinary dispute, doing so in order to avoid liability or bad publicity, has practiced sex discrimination. This is true even though the motive for the discrimination did not come from ingrained or permanent bias against men.

For example, two court rulings were made against the University of Mississippi for unfairness to the accused in the disciplinary process.  In these cases, the court pointed to investigative practices and Title IX training materials that suggested even “lies” by an accuser “should be considered a side effect of an assault.”  

A  similar result occurred at the University of Miami where the college’s refusal to make the accuser’s witnesses appear personally and be subject to cross-examination was found to be a critical defect in the school’s process.  Miami’s “claim that no amount of cross-examination could have changed the minds of the hearing panel members,” the judge concluded, “arguably undercuts the fairness of the hearing.”

Why You Need Us as a Specialized Title IX Defense Lawyer

A local attorney will not have the on-point knowledge or ongoing expertise and know-how that a Title IX defense lawyer will have and likely not have the experience to manage the school’s disciplinary process to best position you or your child. While many cases also include state law claims such as breach of contract where the state recognizes that an implied contract is formed based on the university’s published policies and procedures when the student enrolls, these claims are less complex and very familiar to Title IX counsel.

Our Firm

We at Nesenoff & Miltenberg can help you. We have represented hundreds of accused students and have been successful in both the college disciplinary process as well as in court by filing Title IX claims when the school’s decision is unfavorable. We served as counsel for many of the Title IX cases described in this article. 

There is absolutely no fee for a private consultation. The earlier you call us, the better positioned you will be and the less likely you may inadvertently waive some rights or fail to take maximum advantage of the rights the law affords to you. Don’t wait until a negative transcript notation, suspension, or expulsion occurs. Let us manage the disciplinary process from day one.

Call us at 212-736-4500 or contact us online. We are here for you 24-7.