Your Right to an Attorney in Title IX Proceedings

Mar. 25, 2021 By Andrew Miltenberg

Being accused of sexual misconduct on campus is painful for any student. Fear, anger, and confusion are common responses. Yet as powerful as those emotions are, Title IX attorney Andrew T. Miltenberg urges students and their families to put them aside and seek legal representation immediately. The student’s future depends on it.

“The school will protect themselves and the accuser because that’s where risk lies,” he observes. “Higher education is a business, and bad press isn’t good.” Under these circumstances, only an experienced lawyer can help ensure a fair proceeding and just outcome. 

Choosing the Right Representation 

Recent updates to Title IX regulations were met with strong reactions on all sides. These policy changes ultimately enhance protections for both victims and the accused, with the right of all parties to have legal representation at disciplinary hearings chief among them.

An accused student must not go into a college hearing alone. Too often students begin the process without representation and make self-incriminating statements or accept conditions that are unfair at best and a violation of their rights at worst. At this point, it may be too late for even the most experienced attorney to reverse course and prevent lifelong consequences. 

A student’s representative need not be a lawyer, and university administrators may suggest a faculty member or advisor fill the role. But students should avoid such representatives, Miltenberg says, because their interests are aligned with those of the institution – not the rights of the accused. 

“That person may be well-meaning,” he advises, “but you can’t forget who they work for and you shouldn’t anticipate they will advocate for you.”

Gender bias plays a role in these advocate relationships as well. Some people tasked with overseeing disciplinary hearings, conducting investigations, and working with the accused may have significant biases that lead to assumptions which endanger the accused’s case. With this in mind, the need for experienced legal representation becomes obvious. 

Experience Matters

Students and parents often assume a criminal or civil rights attorney is the best advocate for a Title IX hearing. In Miltenberg’s experience, this couldn’t be more wrong. Universities have extensive freedom to manage disciplinary proceedings, so someone facing a Title IX hearing in college doesn’t necessarily receive all the protections that criminal lawyers expect from their experience in a regular courtroom.

“It’s nothing like the normal practice of law,” Miltenberg explains. “It’s important to have someone with experience in preparing a witness and eliciting testimony in these proceedings.”

When Miltenberg works with students accused of sexual assault, he advises them to three crucial steps. While every situation is unique, following this advice can mean the difference between lost opportunities and a bright future. 

First, cease use of campus email and school-provided technology immediately. Because these belong to the college, there is no expectation of privacy when communicating with your lawyer or family. Students should stop posting on social media and maintain a low profile on campus. They must never confront the accuser, and no attempt should be made to apologize or ask for explanations. Doing so may be seen as an admission of guilt. 

Miltenberg also asks students to create a detailed narrative of the incident, even including information they consider unimportant. Any photos, social media posts, or text messages should be included as evidence to clarify their side of the story. 

Finally, students should never speak to anyone at the university without legal guidance. “You should assume you’ll be interrogated by someone with law enforcement or prosecutorial training,” Miltenberg explains. “It’s incredibly hard for anyone, let alone someone so young. Students often feel humiliated, may fear telling their parents, or worry about losing scholarships. It’s virtually impossible under these circumstances to give an accurate, compelling narrative alone.”

Unlike earlier Title IX regulations, the most recent update from the Department of Education has been codified in law. As such, all students accused of sexual misconduct violations should exercise their right to legal representation to the fullest. For more information about your right to an attorney in campus disciplinary proceedings, contact Andrew T. Miltenberg