Do You Need a Title IX Lawyer in Your Own State?

Aug. 5, 2019 By

Title IX of the U.S. Civil Rights Act prohibits discrimination by colleges and universities on the basis of sex or gender. It applies to all public and private schools that receive federal funding. If a school violates Title IX, it can lose its federal funding.

Title IX has been used by claimed victims of sexual assault and sexual harassment to bring actions against colleges and universities they believe have not been strict enough in convicting and punishing students accused of sexual misconduct. This perspective was adopted by the Obama Administration in 2011 when it issued a letter to schools requiring more aggressive procedures and a lower standard of proof to favor the alleged victim. In response, most schools adopted processes and conducted disciplinary hearings that favored the victim and made conviction of the accused more likely. But courts have increasingly held that Title IX requires colleges to provide at least minimal due process and fundamental fairness to the accused in a disciplinary proceeding.

Title IX is a complex law and every college’s policies and procedures are different.  If you or your child are accused of campus sexual misconduct, it is critical that you hire a specialized Title IX defense lawyer as soon as possible.

What Does a Title IX Lawyer Do For You?

A Title IX lawyer has expertise, experience, and practical know-how to manage both the school disciplinary process and, if the outcome is unfavorable, a lawsuit against the college. A Title IX lawyer will establish a favorable record at the college hearing for you to bring a Title IX suit seeking to overturn an unfavorable result based on bias or the absence of fundamental rights in the conduct of the proceeding such as the right to see and present evidence and submit questions to cross-examine the complainant and witnesses. A Title IX lawyer also will be best positioned to advise on how to challenge a result that is not supported by the evidence.

Your defense attorney will start with a review of the university’s investigation and disciplinary policies and procedures, many of which may be established with inherent bias against the accused. Most schools begin with an informal preliminary or formal investigation by a Title IX officer or other person who will make a report to the Dean or a panel that will conduct the hearing. 

Many of these investigators and administrators are inherently biased against men and a Title IX lawyer will do an extensive background check on the investigator, his or her publications, public statements, and social media posts, as well as his or her history in conducting investigations, to bring gender bias to light. One court found that the bias of an investigator was a factor in failing to dismiss a Title IX proceeding brought by an accused student found responsible. 

During the college’s hearing, the Title IX lawyer will appear with you as an advisor to make sure you are afforded fundamental rights of defense as provided by the school’s policies and OCR Title IX guidance.  These rights include the opportunity to review statements of the accuser and his or her witnesses, review all documents considered by the investigator, and provide questions to ask the accuser and his or her witnesses.  As the accused student, you will provide a statement, can suggest witnesses, and introduce documented evidence (which can include text messages, social media, and other informal communications) to support your defense. 

If there is any bias or failure to follow the university’s published procedures, the Title IX defense attorney will record objections and establish a record that brings the bias and procedural errors to the forefront on appeal. 

If you are successful and found “not responsible,” the Title IX lawyer will assist you to prepare an appeal in the event that the accuser appeals the outcome  which could subject you to “double jeopardy,” in other words, being adjudicated for the same charges again after you have been found “not responsible.” If found “responsible” the Title IX lawyer will assist you in preparing an appeal to overturn the finding and sanctions, and to prevent any sanction from being increased to suspension or expulsion based upon the accuser’s appeal. (Yes, the accuser can appeal if you are found “responsible” to plead for an increased sanction.) If you are unsuccessful, the Title IX lawyer will have documented the entire process so as to be able to bring a lawsuit in federal court challenging the university’s findings. 

Do You Need a Local Attorney in The State Where You Live or Where the College Is Located?

Title IX is a federal law and a Title IX lawsuit will be brought in federal, as opposed to state court. A Title IX lawyer has the expertise in the federal court procedures and Title IX federal substantive law to best protect your interests. There may be state law claims in the causes of action for the lawsuit which a nationwide experienced Title IX lawyer will include under the proper jurisdiction. An experienced Title IX lawyer will have local counsel to assure proper filing procedures.

A local attorney will not have the on-point knowledge or Title IX litigation expertise and know-how that a Title IX defense lawyer will have and also likely not have the experience to manage the school’s disciplinary process to best protect you or your child. While many cases also include state law claims such as breach of contract where the state recognizes that an implied contract is formed based on the university’s published policies and procedures when the student enrolls, these claims are less complicated and very familiar to Title IX counsel.

This complex area—both on-campus and in federal court if necessary—is beyond the province of a local attorney and requires the specialized expertise of a seasoned and accomplished Title IX lawyer.

Examples of Title IX Cases in Different States

Title IX cases have been brought in numerous states by experienced Title IX lawyers beyond where they typically practice with successful results.

For example, in New York, a court pointed to the fact that the investigator and the hearing panel both declined to speak with and allow testimony from potential witnesses the accused had identified as sources of information favorable to him. The court also found credible that the investigator and the panel failed to act in accordance with university procedures designed to protect accused students. The investigator, the panel, and the reviewing Dean all reached conclusions that were incorrect and contrary to the weight of the evidence.

The court stated an accused is “entitled to succeed, even absent evidence of illegitimate bias on the part of the ultimate decision maker,” so long as a biased person (in this case the university’s Title IX administrator and investigator) who had institutional influence “played a meaningful role in the process.” 

In Mississippi, two court rulings were made against the University of Mississippi for unfairness to the accused in the disciplinary process. In these cases, the court pointed to investigative practices and Title IX training materials that suggested even “lies” by an accuser “should be considered a side effect of an assault.”  

In Michigan, a student athlete and NFL player who had graduated after being found not guilty in a sexual assault allegation, was retried as a graduate student and found guilty for the same undergraduate events without even being informed of the proceeding. The only attempt to contact the student was by email to an email address he no longer used. The university settled a Title IX case brought by the student who was represented by Title IX defense attorney Andrew Miltenberg.  The settlement cleared the student’s name and record but not until the student had been released by the NFL’s Houston Texans and blackballed by other NFL teams for two years.  

A similar result was obtained by Attorney Miltenberg with respect to a student athlete at Colorado State University.  The student filed a Title IX suit against the University alleging gender bias and denial of due process in the school’s hearing process.  The matter was settled by the school with the student’s suspension being lifted and the finding of sexual assault removed from the student’s record.

Title IX Defense Attorney Andrew Miltenberg and Our Firm

Andrew Miltenberg and the attorneys at Nesenoff & Miltenberg can help you. We have represented hundreds of accused students in college sexual misconduct claims in over 40 states, both on campus and in the courts. Our team handles cases nationwide, anywhere in the U. S., in defense of accused students and faculty and we have filed over 60 Title IX cases, more than any other firm in the country.  We were counsel of record in several of the successful cases described above. There is absolutely no fee for a private consultation. The earlier you call us, the better positioned you will be and the less likely you may inadvertently waive some rights or fail to take maximum advantage of the rights the law affords to you. Don’t wait until a negative transcript notation, suspension, or expulsion occurs. Let us manage the disciplinary process from day one.

Call us at 212-736-4500 or contact us online. We are here for you 24-7.