How Disciplinary Proceedings Differ From Criminal Trials

Nov. 2, 2022 By NMGL

When students are accused of campus sexual misconduct, they may imagine a scene out of “Law & Order,” with a presiding officer seated on a dais above lawyers at large tables. The reality is quite different – a difference that Andrew T. Miltenberg, a leading student-rights attorney, says all college students must understand to protect their rights, reputation, and future.

“These are highly specialized hearings,” he explains. “They bear no relationship to what lawyers encounter in criminal justice or other areas of civil rights law.”

Changing guidance from Washington

Title IX refers to a section of legislation from the Education Amendments of 1972 prohibiting sex-based discrimination at schools that receive federal funding. While Title IX was initially created, in part, to address general inequity in athletic programs, it is often referred to today in the context of sexual harassment and sexual assault. 

In 2011, under the Obama administration, the Department of Education’s Office for Civil Rights issued a letter that directed higher education institutions to take steps to address and prevent harassment in schools. This letter covered harassment based on race, color, national origin, disability, sex, and gender. The guidance also noted that schools that do not take effective steps to respond to sexual harassment or violence, in compliance with Title IX, could lose federal funding or risk litigation. 

During the Trump administration, the Department of Education issued new Title IX regulations in May 2020. These changes were significant: They revised the definition of sexual harassment and required schools to hold live hearings to investigate sexual misconduct cases. These changes also offered the opportunity for cross-examination during hearings. “These rules made Title IX more equitable and transparent and added more due process, while at the same time allowing victims to feel protected,” Miltenberg says.

But in June 2022, the Biden administration changed Title IX guidelines again – rolling back some of the Trump-era changes, and expanding the scope of who is covered and where universities have jurisdiction.

Guidance for disciplinary hearings and the “standard of proof”

Under the 2020 regulations, schools were required to hold live hearings when a student was accused of sexual misconduct. During the hearing, the decision-maker in the proceedings had to permit each party’s advisor to cross-examine the other party – “directly, orally, and in real time,” according to the guidelines.

In contrast, the proposed guidance in the 2022 regulations permits, but does not require, live hearings with cross-examination – which could result in investigators missing out on critical details, or possibly unfair proceedings. “The right to be heard and to a fair and full opportunity to respond to allegations is one of the foundational principles of our system,” states Miltenberg.

The Trump-era regulations offered different options for resolving complaints based on the information provided about the events that occurred and the parties involved. They could require “clear and convincing evidence” – which means that the evidence presented must be considerably more likely to be true than false. Or they could use a lower standard of proof called “preponderance of the evidence,” which simply means that it is more likely than not that a Title IX violation occurred.

Under the Biden administration’s proposed changes to Title IX, schools must use the preponderance-of-the-evidence standard – unless they use the higher standard of clear and convincing evidence in all comparable types of proceedings. This could mean that schools conclude Title IX investigations without thoroughly weighing the value of all the information available to them.

The concern, Miltenberg explains, is that this expansion of Title IX will lead to a lack of clear and consistent policies for colleges and universities to follow. “The push now is to go back to greater jurisdiction for universities, a more expansive definition of what can be considered sexual assault or harassment, and less opportunity for questioning of an accuser,” he says.

That could mean that schools might apply different procedures to different complaints. “There has to be some uniformity and consistency between universities and within universities,” says Miltenberg.

Legal support is essential

While the proposed guidelines first issued in June 2022 are unlikely to be finalized until 2023, “schools are not necessarily waiting,” clarifies Miltenberg. “I think they’re going to interpret it as if these proposed changes have already taken effect.”

If you or your child has been accused of campus sexual misconduct, it’s critical to ensure you receive a fair proceeding and the most experienced representation available. To learn more about navigating on-campus disciplinary hearings, contact Andrew T. Miltenberg today.