Due Process Rights of the Accused in Title IX Cases

Aug. 21, 2019 By

Title IX of the Civil Rights Act prohibits public and private universities and colleges from discriminating in any activity or educational benefit on the basis of sex or gender. Title IX has been used by alleged victims of sexual assault or harassment on campus to sue universities and colleges for not taking severe enough action against the alleged perpetrators.

The Obama Administration increased the use of Title IX to vindicate victims’ rights when it issued a “Dear Colleague” letter in 2011 to over 4,000 public and private schools.   

Threatening schools with loss of federal funding, the letter effectively told administrators that they should weigh the process in favor of the alleged victim. Schools were told to conclude investigations promptly and to not allow accused students the right to cross-examine their accusers or to have lawyers participate in the process. And hearing officers should decide cases of sexual harassment not  “beyond a reasonable doubt,” but by a “preponderance of evidence” standard — meaning hearing officers don’t need to be convinced that an incident occurred, only that it is more likely than not.

As a result, many schools revised their procedures to favor the alleged victim over the accused. The accused student is frequently not permitted to review statements made by the complainant or supporting witnesses, to pose questions to the complainant or witnesses, or to examine documents relied upon by a school investigator–typically a Title IX administrator– who writes an investigative report with recommended findings or provides the report to a hearing panel that makes the decision whether the accused is responsible. Often the investigator’s report is not made available to the accused student which makes it difficult to put on a defense. Many schools have limited or in certain cases precluded the accused from providing any exculpatory evidence at all.

Due Process and Fundamental Fairness Rights Required for College Title IX Hearings

Courts have held that the 14th Amendment to the U.S. Constitution requires an accused student to be given minimum procedural due process in any disciplinary hearing on campus involving a public college.  Private colleges are held to similar standards and a showing of bias or the absence of fundamental fairness in a university’s procedures have been held to violate Title IX.

Due process requires fundamental fairness in the process when the result is to deprive someone of life, liberty or property. One court ruled that “State universities must afford students minimum due process protections before issuing significant disciplinary decisions.” Certain courts have held that denying the right to a public college education is the taking of property and the resulting denial of a chance to make one’s desired course of living is the taking of liberty.

The essence of due process is notice and the opportunity to be heard. At a minimum, a student facing expulsion is entitled to the opportunity to be heard at a meaningful time and in a meaningful manner before a neutral fact-finder. To satisfy due process, a hearing must be a real one and not a sham or pretense.

The U.S. Supreme Court has ruled that when the right to life, property, or liberty is protected by the 14th Amendment’s Due Process Clause, it may not be withdrawn on grounds of misconduct absent fundamentally fair procedures to determine whether the misconduct has occurred. Determining what is fundamentally fair is always a context-specific inquiry. The very nature of due process negates any concept of inflexible procedures universally applicable to every imaginable situation. Thus, for example, a university has much more flexibility in administering academic standards than its code of conduct. 

There are distinct differences between decisions to suspend or dismiss a student for disciplinary purposes and similar actions taken for academic reasons. And even in the disciplinary context, the process due depends on a number of factors, including the severity of the consequences and the level of education. A 10-day suspension warrants fewer procedural safeguards than a longer one. 

A Title IX defense attorney has expertise on what procedural safeguards courts have required in connection with college disciplinary processes that could result in suspension, expulsion, or negative transcript notations.  Such an attorney can scrutinize your institution’s procedures under applicable law and help you establish a record of failing to receive fundamental fairness and your rights to due process should the on-campus result be unsuccessful, and a Title IX lawsuit be required.

Court Decisions on Fundamental Unfairness and the Absence of Due Process

Numerous courts have examined college procedures and the conduct of disciplinary hearings. Among the factors that have led to Title IX defense lawsuits being allowed to go forward against a college or university are the following:

  • Where the investigator or the panel failed to follow the university’s own procedures to protect accused students
  • Where the investigator or panel failed to interview the accuser
  • Where the investigator or the panel failed to interview witnesses offered by the accused to support his claims
  • When a biased person (such as a Title IX coordinator) played a meaningful role in the process, such as being appointed the investigator
  • For bias in Title IX training materials such as materials that suggested even “lies” by an accuser “should be considered a side effect of an assault” 
  • Failure to permit submitted questions to cross-examine the accuser or adversary witnesses
  • Showing of public pressure on the university to more aggressively prosecute sexual abuse allegations

When to Contact an Attorney 

A Title IX defense requires in-depth expertise and know-how that a general practice attorney will not have. If accused, you need to have an experienced Title IX defense attorney working for you as early as possible in the process. Such an attorney can identify shortfalls in the school’s disciplinary procedures, biases in both the process and the university officials making the decisions, as well as defects under Title IX and failures of due process in how the hearing is conducted. It takes expertise and skill to make these decisions and the earlier you contact a Title IX defense attorney, the less risk that you will miss a defect or inadvertently waive any of your rights.

Our Firm 

We at Nesenoff & Miltenberg can help. Our attorneys are Title IX defense specialists and we have helped hundreds of accused students across the country who have been treated unfairly by their schools. We are parents too. Call us at 212-736-4500 or contact us as soon as a complaint is filed and we will be there aggressively protecting your rights, ensuring a fundamentally fair process, or establishing the deficiencies that will lead a court to reverse the school’s adverse findings. There is no fee for a private consultation.