What are the steps in a Title IX defense case?

Jul. 22, 2019 By Andrew Miltenberg

What are the steps in a Title IX defense case?

Being accused of sexual misconduct in a college environment brings many procedures that will play out to determine a favorable or unfavorable outcome.  An unfavorable outcome can mean a permanent negative inscription on your transcript—something that can effectively prevent you from being accepted by a desired transfer or graduate school or employer—suspension, or expulsion from school. 

The alleged victim will likely file a complaint against the school under Title IX of the Civil Rights Act. Title IX prohibits college or university discrimination based on gender. It has been used by women to make complaints against schools for allegedly not taking appropriate action against claimed male perpetrators of sexual misconduct. Schools not in compliance with Title IX can lose their federal funding such as grants or student loans. Thus, many schools have established disciplinary procedures that favor the claimed victims, who are nearly always women, over men in sexual misconduct cases. 

However, Title IX also protects men from bias in the disciplinary process and requires fundamental fairness. This means you must receive unbiased hearing examiners and procedures such as the right to present and review documents, provide witness testimony, be able to ask questions to the accuser and her witnesses, and be subject to the college bearing a burden of proof to establish guilt greater than a mere “preponderance of the evidence” (a 50.01% likelihood) in both determining fault and the need to discipline. 

A Title IX proceeding is different from a criminal investigation under the law. For you to be accused in a criminal case, the local District Attorney must present the case to a grand jury to determine whether there is probable cause that a crime such as sexual assault has been committed. If the grand jury finds probable cause, guilt must be proven “beyond a reasonable doubt” (a 90-95% likelihood) at trial, but the consequences can be jail time, criminal fines, or a permanent stain on your public record. 

As a result of pressure from the Obama Administration to aggressively reprimand accused male students, many schools have procedures in place that do not meet the due process and fundamental fairness requirements of civil law proceedings and conversely require such a low burden of proof that it all but assures that an accused will be found “responsible” for the allegations. 

The First Steps in a College’s Disciplinary Process 

The first step in a Title IX defense is to evaluate and assess the school’s disciplinary procedures to make sure they provide you with the rights that Title IX requires. This should be your first act if accused of sexual misconduct and, since each college has different and possibly complex procedures, it is best done by a Title IX defense attorney who is knowledgeable and experienced in this area. If the process is unfair or biased, a Title IX defense lawyer can advise you on how to protect your rights and document injustices should you need to seek a federal court to set aside any unfavorable result. 

While each school is different, many colleges will first appoint an investigator to make a preliminary assessment of what occurred and whether it was consensual.  In doing so, the investigator typically undertakes a formal investigation with interviews and statements from both the accuser and the accused, reviews documents, and may speak with witnesses as well. If the investigator finds a likelihood of a potential policy violation, he or she will submit an investigation report to a university administrator or a tribunal who must then conduct a hearing. 

The hearing should be conducted somewhat formally before a predetermined or mutually-agreed-upon panel. Some schools do not appoint a panel and use a Dean to conduct the hearing or have no hearing with simply a determination by an administrator. It is critical that the Dean or panel not be personally biased against men when it comes to allegations of sexual misconduct. A Title IX defense attorney will seek to examine their personal history and public statements as well as evaluate how they conduct the hearing to determine whether pre-existing bias against men has come into play.

At the hearing, the accused should be entitled to review the alleged victim’s statements and evidence, hear her testimony and those of her witnesses, and be able to submit questions to cross-examine all of them to bring to light any inconsistencies or matters that would suggest the conduct was consensual or otherwise that no violation occurred.  

At the hearing, you should be permitted to testify and have witnesses testify on your behalf. 

Upon conclusion of the hearing, the panel should issue detailed findings from the evidence presented. Generally, it is the Dean of the college who makes the final determination to impose penalties and the nature and extent of those penalties, typically but not always adopting the recommendation of the panel.

The University’s Appeal Process

Most colleges and universities have an appeal process under which either the alleged victim or the accused, or both, can appeal the panel’s findings to the President of the university or other high-ranking official. The appeal process also must be free of bias against either sex and should be supported by a written statement from the President or senior official in support of their decision on the appeal.

If you are found “responsible” for a violation of policy, your Title IX defense attorney will assist you in preparing a written appeal of the finding and sanction.

If you are found “not responsible” by the panel, your Title IX defense attorney will advise you in preparing an appeal in response to any appeal by the accuser so that, similar to criminal law, you are not subjected to “double jeopardy.” Additionally, by this time, a Title IX defense attorney will have structured the record to best position you in a Title IX court case challenging the university’s procedures or its findings.

What Happens After the School Makes a Final Decision

If the outcome is unfavorable, the school’s decision can be challenged in a Title IX case brought in federal court. 

To bring an erroneous outcome case, the accused must do more than merely dispute the outcome. You must show the college was biased or discriminated against you because of your sex; that the bias or discrimination was intentional; and that the bias or discrimination was a substantial or motivating factor for the university’s actions. 

Among the reasons courts have cited to support an accused student’s Title IX defense claim are:

  • Where the investigator or the panel failed to follow the university’s procedures to protect accused students
  • Where they failed to interview witnesses offered by the accused to support his claims
  • When a biased person (such as a Title IX coordinator) played a meaningful role in the process such as being appointed the investigator
  • For bias in Title IX training materials such as materials that suggested even “lies” by an accuser “should be considered a side effect of an assault” 
  • Failure to permit cross-examination of the accuser or her witnesses
  • Evidence of public pressure on the university to more aggressively prosecute sexual abuse allegations

When to Contact an Attorney

All of this demonstrates the complexity of a Title IX defense and the need for having a Title IX defense attorney involved as early as possible in the process. Such an attorney can identify shortfalls in the disciplinary procedures, biases in both the process and the university officials making the decisions, as well as defects under Title IX in how the hearing is conducted. It takes expertise and know-how to make these decisions and the earlier you contact a Title IX defense attorney, the less risk that you will miss a defect or inadvertently waive any of your rights.

Our Firm

We at Nesenoff & Miltenberg can help. Our attorneys are Title IX defense specialists and we have helped hundreds of accused students who have been treated unfairly by the school. We are parents too. Call us at 212-726-4500 or contact us as soon as a complaint is filed and we will be there aggressively protecting your rights and ensuring a 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.