Title IX Investigation Procedures: School and Federal Court

Aug. 21, 2019 By

The Difference Between Title IX Investigation Procedures in School and in Court

If you or your child is accused of sexual misconduct in a university or college environment, you will be subject to the school’s investigatory process. This process is established by the school and should be published in the Student Handbook or other document. The school controls the procedures and you should not assume they are fair.  If the result is unsuccessful (you are found responsible for having committed the claimed offense), the results can be significant–suspension or expulsion from the college, a negative permanent notation on your transcript, or other action that will make getting into another university, a desired graduate school, or obtaining gainful employment difficult if not impossible.

Your best recourse is to hire a Title IX attorney for both the college disciplinary process and for a federal lawsuit against the college seeking to overturn its findings if you are not successful on campus.  The Title IX attorney will guide you through the school’s procedures looking for evidence of bias or lack of due process or fundamental fairness in both the procedures and the conduct of the hearing itself.  

The procedures in federal court are more even-handed and will give you opportunities to review statements and evidence that the school may not have allowed. The judge will rely on case law decisions under Title IX to examine the fundamental fairness of the school’s procedures and whether you were afforded due process in presenting your defense at the school.

This article contrasts the procedures in school and in court and provides examples of court cases that have reversed the school’s decision, ordered the removal of negative transcript notations, and restored the accused student’s status and good name.

School Investigatory and Disciplinary Processes

Universities and colleges, both public and private, are required by Title IX of the Civil Rights Act to have procedures in place that do not discriminate on the basis of gender. If they do, they risk loss of federal funding such as grants or scholarships. In 2011, the Obama Administration issued a letter to approximately 4,000 universities and colleges.

Threatening schools with loss of federal funding, the letter told administrators that they should effectively weigh the process in favor of the alleged victim. They were told to conclude investigations promptly and to not allow accused students the right to cross-examine their accusers or to have lawyers participate.  And hearing officers should decide cases of sexual harassment not “beyond a reasonable doubt,” but by a “preponderance of evidence” standard — meaning hearing officers don’t need to be convinced that an incident occurred, only that it is more likely than not.

As a result, many universities and colleges established procedures that favored the alleged victim in claims of sexual misconduct.  Most schools appoint an investigator–often the school’s Title IX administrator–to investigate the charges, speak with both parties and possibly witnesses, and review documents–and report to a hearing panel.  The hearing panel is typically composed of three college faculty or staff and chaired by the Dean of the College. The panel then conducts a hearing in which the accused may not be provided the accuser’s statements or the opportunity to raise questions to the accuser or witnesses, and may not be allowed to present exculpatory evidence.  The panel makes a recommendation to the Dean who typically adopts it and, if the accused is found responsible, imposes sanctions such as suspension and negative transcript notations. A school may have an appeal process to the Provost or other senior official of the university who, in most cases, will rubber stamp the Dean’s findings and sanctions, and make them final.

Investigatory Procedures and Processes in a Title IX Court Case

A Title IX court case can allege that the school’s procedures are inherently biased or that the application of those procedures to you lacked due process or fundamental fairness and were unfairly weighted to produce an erroneous outcome.

In federal court, the rules give each party full access to all procedures, documents, and statements used by the other party so the school is compelled to turn over all the evidence it used to find you responsible.  You are also entitled to have your Title IX attorney take a deposition of the alleged victim and adversary witnesses. You are permitted to introduce your own documents, witnesses, and testimony. Many courts have held that due process and fundamental fairness require a higher burden of proof to find guilt than merely a preponderance of the evidence.

Recent Court Decisions Have Overturned College Findings of Student Liability

In a recent case decided against Purdue University a federal appeals court ruled that the failure of the investigator and the panel to interview the alleged victim and her failure to personally submit a statement or appear at the hearing, were factors in denying the accused student fundamental fairness and due process. The court also pointed to two members of the panel acknowledging they had not even read the investigator’s report and the panel’s refusal to allow the accused to present any exculpatory evidence including not allowing a roommate to testify that the student was in his dorm room when the alleged incident occurred.  Collectively, these actions showed inherent bias and favoring the alleged victim from her mere filing of charges. These actions violated Title IX’s prohibition on sexual discrimination.

In another case involving Michigan State University, a student was found “not responsible” for a sexual assault charge and he graduated to become a wide receiver in the NFL. While registered as a part-time graduate student, however, the University reopened the case and found him liable for the original sexual misconduct charges without even contacting him about the new hearing.  The result was he lost his NFL position and spent two years pursuing the University under Title IX in court.

The student hired Title IX defense attorney Andrew Miltenberg and brought a Title IX action against Michigan State. The university ultimately settled the case after a court-ordered mediation, agreeing to delete the new findings, remove any negative notation on his transcript, and pay a financial settlement. He is seeking to return to the NFL and get on with his life.

When to Contact a Title IX Defense Attorney

These cases show the need for having a Title IX defense attorney involved as early as possible in the process, preferably as soon as a claim is made against you or your child on campus. A Title IX defense attorney can identify shortfalls in the school’s disciplinary procedures, biases in both the process and the university officials making the decisions, as well as find 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 resulting in a situation such as the ones that happened to the students at Purdue and Michigan State.

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 their schools, including the students in both the Purdue and Michigan State cases. We are parents too. 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 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 confidential consultation.