How Disciplinary Proceedings Differ From Criminal Trials

Feb. 25, 2021 By Andrew Miltenberg

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.”

Protecting the rights of the accused
Under the Trump administration, the Department of Education issued new Title IX regulations in May 2020. These regulations include new protections for victims as well as rules that help ensure the accused receives a fair hearing. “These new 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.
The regulations grant the accused the right to a live trial with multiple panel members. This is an important change, as previously the same party could serve as both investigator and adjudicator. The accused is also entitled to active representation, and that representative may cross-examine witnesses during the proceeding. This helps ensure the opportunity to present a competing narrative and challenge the claims of the accuser.
While these changes have been criticized by victim’s-rights advocates, Miltenberg reminds us that our justice system considers all those accused to be innocent until proven otherwise. “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,” he states.
A different standard of evidence
When the Obama administration increased the pressure on colleges to pursue sexual disciplinary cases more vigorously, it encouraged the use of a lower standard of evidence than in criminal proceedings. “On college campuses,” Miltenberg says, “the threshold is the preponderance of the evidence, which can be as low as 50.0001% certainty. It’s less well-defined and more subjective.”
The Trump-era regulations offer more options. While schools may continue using a preponderance-of-evidence, they can alternatively require what attorneys call clear and convincing evidence. This means that the evidence presented must be considerably more likely to be true than false. While this gives the accused more hope that evidence will be considered fairly, it’s important to note that most universities continue to rely on a lower evidentiary standard that makes findings more subjective, and that standards may not be enforced consistently between cases.
A victim-centered approach
During a criminal proceeding in a court of law, the accused expects that neither party’s testimony will be given preference. This is far different from campus disciplinary proceedings, which often rely on a victim-centric approach to investigation.
The goal of this approach is noble, attempting to make victims feel comfortable in coming forward and account for the impact of trauma. Unfortunately, the rights of the accused are often lost in this prioritization. As Miltenberg observes, investigators often insist that a proceeding “must believe whatever an alleged victim says, even when their story changes repeatedly.” On the other hand, he says, investigators assert that “very little of what the accused says can be believed, because someone will do whatever they must to avoid liability.”
Legal support is essential
It’s natural for students to feel frightened, angry, and isolated after an accusation of sexual misconduct. Yet while these feelings can be overwhelming, Miltenberg urges students and their parents to seek representation immediately. As he notes, “the incredibly significant ramifications make it hard for anyone –let alone someone who is quite young. It’s virtually impossible for them to give an accurate and compelling narrative.” Without a lawyer with extensive experience in Title IX disciplinary proceedings, students have little recourse to protect their rights.
If you or your child has been accused of campus sexual misconduct, make sure you receive a fair proceeding and the most experienced representation available. To learn more about disciplinary hearings, contact Andrew T. Miltenberg today.