I Don’t Agree with the Decision of the Title IX Investigation On My Campus. Do I Have Appeal Rights?

Dec. 17, 2019 By Andrew Miltenberg

I Don’t Agree with the Decision of the Title IX Investigation On My Campus. Do I Have Appeal Rights?

If you or your child has been accused of sexual misconduct in a college disciplinary procedure and the school has found you responsible, you must act quickly to protect your rights.  

Most schools have an appeal process to a senior official such as the University President or Dean of Students. The procedures and grounds for an appeal vary from school to school but they should be set forth in the student handbook or otherwise made available to you by the college or university. It is important you get this information as soon as possible and review it carefully.

The time you will have to file an appeal is generally very short, sometimes as little as 72 hours from the rendering of the decision finding responsibility and imposing sanctions.  It is critical that you file a notice of appeal and whatever supporting documentation is required so that you do not miss the deadline. Very few schools will extend the deadline for filing an appeal.

Appeals are also generally limited to what can be raised and asserted to reverse the findings of responsibility or the severity of sanctions. Again, the grounds for an appeal will differ from school to school but most colleges offer at least the following arguments on appeal:

1. A procedural error significantly impacted the outcome of the disciplinary procedure.

Review the school’s published procedures for the conduct of disciplinary proceedings carefully in light of what occurred at the hearing. Like the appeal procedures, disciplinary procedures should be in the Student Handbook or otherwise made available to you. Important protections may have been denied to you or a biased hearing officer may have “rushed to judgment.”

Courts have also ruled that you must be provided due process or fundamental fairness in the conduct of the hearing. This should include the right to review documents and other materials presented by the accuser and her witnesses; the right to submit questions to cross-examine the accuser and witnesses during the hearing; and the right to present testimony and other evidence (e.g., emails, text messages, videos, recordings) for consideration by the hearing officer or panel.

If the college has not followed its own procedures, if you can show bias on the part of a hearing officer, or if you have been denied due process or fundamental fairness in defending your case, you should describe these failures in your appeal documents.

2. To consider new evidence unavailable during the original investigation.

It may happen that new evidence comes to light after the original hearing.  This can occur when new witnesses are identified or come forward, social media posts or electronic communications become known to the accused, or other materials are brought to the accused student.  Always be looking for people and electronic postings that may not have been known or knowable when the hearing took place.

This basis for an appeal cannot be used to introduce evidence that was known to you prior to the hearing but not used in your defense.  

3. The sanctions imposed are substantially disproportionate to the severity of the violation.

It is difficult to give a definite rule about what sanctions should be imposed for what conduct. Words, as opposed to actions, should generally be sanctioned less severely.  Educational, versus punitive, sanctions should be considered. Expulsion from school should be reserved for a finding of the most egregious conduct.

You should also ask whether the hearing result and sanctions will remain on your transcript once the sanctions are served. This is a critical issue because your transcript is a graduate school’s or employer’s window to your candidacy. Being unable to expunge negative entries on your transcript may alone constitute substantially disproportionate sanctions. 

The Need for a Title IX Attorney to Assist You with an Appeal

The appeal process can be complex in evaluating deficiencies within the hearing process and yet may require that critical decisions be made in a short time period. For this reason, it is not advisable to go it alone. A Title IX defense attorney is an expert on finding fundamental flaws in a disciplinary hearing and putting together a compelling appeal brief that will highlight deficiencies in the disciplinary process. Most universities also give the complainant a right to appeal if she is unsatisfied with the result or sanctions. A Title IX lawyer has expertise to refute these “double jeopardy” complainant appeals as well.

If the appeal is unsuccessful, a Title IX lawyer will have positioned the appeal arguments to identify procedural shortfalls, bias of the hearing officer or panel members, and actions constituting a denial of due process or fundamental fairness. These will be the basis for a Title IX lawsuit against the university. Courts have ruled Title IX prohibits decision-making based on sex or gender preference.

Because of the individual and unique circumstances of each case, this blog cannot constitute legal advice but does raise important issues about many school appeal proceedings.

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. 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.