What Happens at the End of a Title IX Investigation at Your School

Aug. 22, 2019 By Andrew Miltenberg

What Happens at the End of a Title IX Investigation at Your School

Title IX of the Civil Rights Act prohibits colleges and universities receiving federal funding (such as grants or scholarships) from discriminating against students on the basis of sex or gender. This includes requiring the school to take appropriate action to prevent sexual assault or harassment including having procedures for disciplinary hearings when a student alleges sexual misconduct by another student.

In 2011, the Obama Administration’s Department of Education Office for Civil Rights issued a “Dear Colleague” letter  to approximately 4,000 schools effectively requiring a policy of favoring the accusers in disciplinary hearings by, for example, lowering the burden of proof to find the accused liable to a mere “preponderance of the evidence” standard meaning a 50.01% likelihood versus a standard of proof that would require a greater likelihood of liability, such as a “clear and convincing” evidence standard.

In response to the letter and a fear of losing federal funding, colleges and universities revised their disciplinary procedures to favor accusers. The process typically begins with an investigator (frequently a Title IX administrator) speaking to the parties and their witnesses and making a report for the disciplinary panel. That is followed by a hearing, usually before a three-person panel. During the hearing, many schools deny the accused the right to cross-examine the accuser or adversarial witnesses or even see the investigator’s report or statements relied upon by the investigator or hearing panel in making a decision.  Gender bias in investigators and hearing panels has also became prevalent.

As a result, many students have been found responsible for the alleged sexual misconduct and disciplined with suspensions, expulsions or permanent transcript notations that effectively prevent admission to desired graduate schools and deny employment opportunities.

This article will describe what happens after a Title IX disciplinary hearing on campus, whether the result is successful or unsuccessful and what your options are if the school finds you or your child “responsible” for sexual assault or sexual harassment.

If You are Successful in Defending a Title IX Claim on Campus

Unlike the criminal law judicial system which precludes retrial of a criminal acquittal by reason of “double jeopardy,” many colleges allow either the accuser or the accused to appeal the ruling of a disciplinary panel. This means that even if you are successful before the hearing panel, the accuser may have the right to seek a review or another hearing by a senior university official. An adverse finding by that university officer is likely to be final. The result is even though you may have been found “not responsible” by a hearing panel, an appeal process (which is based on a review of paper documents only) may find you “responsible” without further recourse at the college.

Cases decided under Title IX claims brought by accused students have found that due process or fundamental fairness must be given to the accused in the university’s proceedings. While no court has ruled that “double jeopardy” provisions must apply to preclude an accuser’s appeal, a Title IX defense attorney can work with you on both the initial hearing and the appeal as well as asserting that an appeal by the accuser should be considered improper, much as the appeal of a criminal finding of “not guilty” is improper under the Fifth Amendment to the U.S. Constitution.

If found “responsible” on appeal, you will not have the option to negotiate the sanction with the university. Moreover, it is unlikely that you will be able to avoid a negative notation of the findings on your transcript which can effectively ruin your chances of being admitted to a graduate school of your choice or to be hired for a desired employment opportunity.

Your best recourse is to bring a federal Title IX lawsuit alleging the university’s procedures were biased in favor of the accuser or denied you due process (if a public university) or fundamental fairness (for a private school) which courts have mandated be provided to accused students.

If You are Found “Responsible” for the Allegations in a Title IX Claim on Campus

If you are found responsible in a Title IX claim on campus (whether initially or on appeal) and have not already done so, you should immediately hire a Title IX defense attorney. Such an attorney can scrutinize the college’s disciplinary proceedings, assess the bias of the investigator (often a Title IX officer who has a bias against men) as well as the hearing officers, and review the conduct of the hearing to see if you were denied Title IX due process or fundamental fairness.  Any of these can be the basis for a Title IX federal court lawsuit against the university seeking to overturn its findings, undo the disciplinary sanctions, and restore your good name.

Recently, courts have become more sympathetic to accused students and their denial of due process and fundamental fairness. One court ruled that if a public university has to choose between competing narratives to resolve a case, the university must give the accused student or his agent an opportunity to cross-examine the accuser and adverse witnesses in the presence of a neutral fact-finder. Another court found unacceptable bias in the investigator and hearing officers when they declined to interview the accuser and two of the panel members admitted to never even having read the investigator’s report. In this case, the student was also denied the opportunity to present witnesses including his roommate who would have testified the accused was in his room when the alleged incident occurred.

Immediate Steps to Take if You or Your Child are Accused of Sexual Misconduct on Campus

Title IX is a specialized and complex area of the law beyond the province of a general lawyer in your state. It will take an experienced Title IX defense lawyer, who specializes in this federal court practice and has both the knowledge and know-how to evaluate a school’s procedures and assess the bias of the decision makers to best assist you in deciding what are the next steps to take. The earlier you hire a Title IX defense lawyer, the better your chances. Such an attorney can scrutinize the college’s disciplinary proceedings and track record, investigate the bias of the investigator and hearing officers based on public statements and social media, and help you position the record for the best possible Title IX case if the outcome on campus is unsuccessful. 

Our Firm

We are Title IX defense experts committed to representing accused students and making sure they are treated fairly with due process rights and fundamental fairness before neutral fact finders. We have represented hundreds of students across the U.S. against large and small public universities and private colleges. We have the know-how and practical expertise to help you. And we have the passion–we are parents too. Given the severe adverse consequences of a finding of responsibility, you should call us at 212-736-4500 or contact us as soon as a complaint is filed on campus. There is no fee for a confidential consultation.