What to Expect During a School Title IX Disciplinary Process?

Nov. 4, 2019 By Andrew Miltenberg

What to Expect During a School Title IX Disciplinary Process?

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

Title IX has been invoked by alleged victims of sexual misconduct to seek remedies against colleges that they believe don’t take enough action against the persons accused of the misconduct.  But courts have also ruled that Title IX forbids imposing university discipline where gender is a motivating factor in the decision to discipline. 

During the Obama Administration, the Department of Education’s Office for Civil Rights (“OCR”) put pressure on colleges and universities to aggressively support the victims of alleged sexual misconduct in their campus policies and university investigations.   Despite efforts by the Trump Administration to make colleges more fair-handed, lack of due process for the accused continues to be the case today at many schools.

If you or your child has been accused as the alleged perpetrator of a sexual misconduct violation of the school’s policy, the procedures you will face should be laid out in the College Handbook or otherwise made available to you by the school.  Be sure to review these procedures carefully. Every college and university has its own specific policies and procedures, making the process difficult to navigate. For example, under recent OCR guidelines, a school is permitted to use either a “preponderance of the evidence” or a higher “clear and convincing evidence” standard of proof for a determination of responsibility.  Know which standard your school will apply.  Also know how your school defines “consent” under various circumstances, such as if one or both students are arguably intoxicated.

Review carefully what you are being accused of and how that is defined in the school policies. New OCR guidelines require schools to give you written notice of the allegations in sufficient detail, including identifying the parties involved, the specific sections of the policies that were allegedly violated, and the date and location of the alleged incident with sufficient time to prepare a response before any preliminary interview.

There is no time limit for the process under recent Trump Administration OCR guidelines, but you can expect the process to take approximately 45 days to several months, depending on the complexity of the issues and the availability of witnesses.

Typically, a university official (usually the Title IX coordinator) will assign an investigator to conduct an investigation.  He or she will interview the complainant and supporting witnesses and review materials, including emails, text messages, and videos.  The investigator will also interview you and your supporting witnesses and review your materials. After doing so, the investigator will prepare a report which may include a determination of findings (the “single investigator model”) or the report may go to the Dean of the College or a panel of university officials who will hear the disciplinary proceeding.  You are entitled to review a copy of the investigator’s report.

OCR guidelines require schools to make findings of fact and conclusions about whether the facts support a finding of responsibility for a violation. The school also must give both you and the complainant an opportunity to respond to the report in writing prior to any decision or hearing. 

Your college procedures should document what opportunity you will have to see the statements and other materials presented by the accuser.  The new OCR guidelines give you this right as well.  

Most colleges provide a process for an appeal to the President of the College or other senior official after the hearing.  Know the timelines and requirements for an appeal including the specific criteria for the grounds on which to appeal.

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.  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.

To satisfy due process, the hearing must be a real one and not a sham or pretense. The new OCR guidance also makes clear that the school must provide both parties with a written rationale for the results and the sanctions. 

Due process and fundamental fairness allow you to be accompanied by an advisor, and the Clery Act extended this to legal counsel in connection with college Title IX disciplinary proceedings.  A Title IX defense lawyer will ensure that the university follows its published standards for a fair investigation and adjudication, gives you access to the accuser’s statements and materials, enables you to provide witnesses and materials for consideration, and allows for an opportunity to submit questions to cross-examine the accuser and her witnesses. 

A Title IX defense lawyer is trained and experienced to spot failures of due process and fundamental fairness in both the university’s published standards and the conduct of its disciplinary proceedings.

If there is any hint of gender bias by the decision makers or denial of due process or fundamental fairness, a Title IX lawsuit can be filed on your behalf in federal court against the school.

Your Next Steps

If you believe your due process rights have been violated, let’s talk.

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.