How to Defend Against Title IX Charges

How to Defend Against Title IX Charges

Why Should I be Concerned About Title IX?

Colleges and Universities are under pressure from the Department of Education to close cases of sexual misconduct quickly and efficiently.  Unfortunately for the accused, this can make schools cut time tables and even withhold evidence in order to close the case.  There is so much at stake: from the short term physiological effects of suddenly being labeled a sexual predator, to the long term effects of suspension, expulsion, firing, and even criminal charges or jail time.

Being accused of sexual misconduct in Pennsylvania schools happens more often than most people realize because schools are pressured to handle cases that occur on or off campus.  Students will suddenly find themselves swept up in a whirlwind of criminal terms from the moment allegations are filed: rape, assault, intimate partner violence, harassment and stalking.  Though they will be facing criminal terms and charges, students accused of sexual assault are often not given the same procedural, evidentiary and constitutional rights as they would have with a criminal offense.  The accused, or respondent, of the case will have even less rights than civil courts.

Unfortunately, the limited rights given to respondents in Title IX cases are all but nonexistent.  With entire academic and career futures at stake, it is important to properly defend your case with the help of a skilled attorney who is well versed in school policies and Title IX procedures.

Do I need an Experienced Advisor?

With the minimal rights granted to a respondent in a Title IX case, and the immense pressure schools are under to close the cases quickly, parents and students who try to mitigate the processes on their own can be quickly overwhelmed.  Even their best intentions may not be enough to avoid the immense consequences that come from loosing a case, and unfortunately, so do not realize this until it is too late.

It is always better to try to obtain a good result at the first hearing rather than appeal a case.  Once a disciplinary panel has decided against the accused, that student or employee will have immediate sanctions placed on them, and may even be fired or expelled.  This information will also be recorded on permanent record.  The heavy stigma following an unsuccessful case is just one more mountain to climb on the way to an appeal.  Securing an attorney from the moment allegations are released is the best course of action for a favorable result.

One of the few favorable rights granted to a respondent is that (at nearly every college and University) the advisor they choose can be anyone.  An experience attorney will have their best interests at stake and will achieve better results.  The odds are not in the favor of the student if they try to do it alone.  Title IX cases are expected to be closed within 60 days.  There is little time for error.

An experienced attorney can do so much more for an accused person when they are sought as early as possible.  The benefits include:

  • Providing guidance to the accused that is objective.  A school appointed advisor might not have your best interests in mind.
  • Make educated and experienced decisions to properly defend against the charges.
  • Make sure the accused is properly prepared for the stressful interviews and hearings that they will go through.
  • Know if a school is violating a respondent’s rights or not following the proper Title IX processes.  They can warn schools to follow the rules or risk a lawsuit.
  • They can negotiate, give legal support, and even advocate with the school’s attorneys in order to acheive a better resolution from behind the scenes.
  • Help navigate every stage of the disciplinary process.

Manchester & Associates has both the experience and success in the Title IX processes.  Our representation can mean the difference between success and failure.

Should I Remain Silent?

From the moment allegations are made know, it is important for a student to immediately exercise caution and not think that it is no big deal.  They should not talk about the incident to anyone, including: friends, classmates, professors, administrators, or even campus police.  Even if summoned, the accused should not speak about the matter until they can obtain an advisor and consult with them.  This is their right.  Once the advisor has been picked, they can postpone, as necessary, any meetings until after a strategy has been developed.

Do I Need to Understand My School’s Title IX Disciplinary Process?

A student cannot expect to succeed in a Title IX process without good knowledge of their individual school and codes.  Since schools can vary in their procedures, what works for one campus may not for another.  Students should immediately familiarize themselves with their school’s particular Title IX processes and procedures.  This is available in the student handbook, the code of conduct, or in separate Title IX provisions.   They should learn their rights and responsibilities within their school’s processes, and what limitations they face in due process.  Doing this will allow the student to understand the Title IX model and what they can expect during their investigation, the hearings, and any other proceedings.  The following are examples of the common models that a student may face:

The traditional disciplinary hearing model:
In this model, the investigation will take place separately from the determination stage of the proceedings.  The investigation can be carried out by campus police, public safety, any other person appoint to the matter, or any combination of the three.  If the investigation concludes that Title IX charges need to be sought, then the respondent will have a chance to present evidence and witnesses before a disciplinary panel or officer.  If the respondent is found to be guilty, then that panel or officer will impose sanctions and disciplinary actions as necessary.

The single investigator model:
Either a school employee or a hired investigator will conduct the Title IX investigation.  They will weigh the evidence and witness testimonies, and then decide appropriate discipline.

The blended model:
Schools may blend the two methods together and use a single investigator to examine the evidence, but then they make their recommended course of action to a disciplinary panel. The panel will ultimately decide to accept or reject the findings.

What Limits are There to Due Process in Title IX?

Title IX may appear to be a balanced framework of regulations that allows ample room for a respondent to fight allegations and seek support, but it has concerning limitations.  Every right granted to the respondent needs to be recognized and utilized to its full extent.  An experienced attorney will know what is the most effective way to counter the obvious imbalances in the Title IX processes.  They will also be able to hold schools accountable for following procedure to the letter, and not let them try to adopt school policies over Title IX policies when investigating a case.

All Title IX investigations are subject to the following Department of Education’s Office of Civil Rights established factors:

Low Standard of Proof:
Unlike the “beyond a reasonable doubt” of proof used in the criminal courts, a respondent in Title IX proceedings is held to the “preponderance of the evidence” standard.  This standard is significantly lower and means that the respondent can be found guilty if the evidence against them is more than 50% likely to be true.  It is even lower than the civil court’s “clear and convincing” standard.  Because Title IX standards are so low, it makes it very challenging for a respondent to prove their innocence.

Mediation between respondent & complainant is not recommended:
Sometimes mediation is used in other college disciplinary cases, but it is not recommended in Title IX proceedings.  If it is allowed, it will always be the complainant’s decision.  The complainant can also abandon the mediation process at any time and pursue formal Title IX actions.

Witness cross-examination is not recommended:
The Department of Education’s Office of Civil Rights does not recommend cross-examination of the witnesses, even though this is an indispensable asset to the criminal justice system.  Normally a witness will undergo questioning by attorneys of both sides of the case.  While one attorney will be trying to prove their case, the other will be trying to get information to disprove it.  When a witness has been cross-examined like this, it increases the chance that the full truth is coming out and that the fact-finder (judge or jury) can accurately determine what happened and who is responsible.Because cross-examination is not recommended in Title IX proceedings, the effectiveness of finding the truth is diminished greatly.  Colleges and Universities will typically address this by allowing both parties to formulate questions for the witness, then have a intermediary ask the questions.  The intermediary has the discretion to ask or reject any question.  The questions can also be misinterpreted or stated wrong because a third party is involved.  Because of this, respondents are at a significant disadvantage of proving their case through witness testimony.

Criminal Investigations will typically not stop or delay Title IX processes:
Most Title IX violations are serious enough that colleges will recommend that the complainant report the incident to the police.  This means that the respondent will be fighting both Title IX allegations and a criminal conviction, but the Title IX proceedings won’t wait for the criminal proceedings to be decided.  Even if a respondent isn’t initially reported to law enforcement, they must be very careful when they speak to their school during the Title IX hearings.  They can be charged criminally later.

Even though the respondent may feel trapped and that it would be better to exercise their right to remain out of the Title IX process and not say anything, it is not recommended to do so.  The Title IX proceeding gives the respondent an opportunity to present their witnesses, evidence, and their version of the events.  Otherwise, the school will proceed with the investigation and decide sanctions on its own.  Sometimes, students can temporarily withdraw from their school pending the final outcome of their criminal case.  It is important to speak with an attorney and decide what is the best course of action for you and your unique situation.

Respondent & complainant have equal rights and equal limitations:
The way Title IX is written, it seems to be very fair to both the respondent and complainant.  If one can present witnesses, so can the other.  This goes for adding comments, supplying evidence, appealing and more.  Students can get a false sense of security if they are unfamiliar with the Title IX process because they will believe that both parties are treated equally.  Unfortunately, the practice of giving both parties the same opportunities can work to the respondent’s disadvantage.

One of the biggest examples of this disadvantage is the right to appeal.  If a respondent is granted an appeal, and proves their innocence, the fight is not over.  The claimant has the same right to appeal and gets another chance at a “double jeopardy” type scenario, where a respondent can be proven guilty once again.  Though equal rights may seem fair, it is much more complicated when put into practice.

Should I Build a Record of Evidence?

During the Title Ix process, schools will build a record of the case and make decisions on what evidence to keep in it.  This record is what they will use to determine if there is enough evidence to charge the respondent.  An attorney can help determine what evidence is best for the case, and what can hinder it.  Though the school (administrators, campus police, public safety, investigator or other person)  is collecting all the evidence, a respondent can not trust that they will keep or gather everything.

Respondents should keep their own perspective on the testimony of witnesses and submit names of witnesses that can testify for them.  A respondent can also bring up evidence that may be looked over, such as social media, text messages, voicemail or other communication, any written correspondence or dormitory logs.  Anything that might be considered evidence can be discussed with a knowledgeable attorney to build the strongest case possible.  Since the school is building evidence from both the respondent and complainant, it is important that the accused brings all the evidence they have to their advisor, even things that may not be beneficial to them.  This allows the advisor to know fully what is going on and then they can decide the best way to present what is given: emphasizing favorable evidence, and mitigating unfavorable evidence.

Do I Need to Confirm the School’s Record and Document Everything?

Respondents need to make sure that the record of evidence compiled in the Title IX investigation is accurate and complete.  Whether or not the school provides the final report for review before the hearing, that respondent need to be proactive in confirming the record before a decision is made.  That way they can see if any evidence has been omitted or not fully represented.  They can also see if there is bias against them.  This way they can object to the material being presented before the hearing happens.

If the student does not review the record and object to any omissions, they are placing themselves in a precarious situation.  The report will be made final and will be reviewed.  Then the respondent can place their defense in jeopardy because a decision was made on inaccurate or missing information.

What if the school does not listen to the respondent’s objections?  It is still important to have those objections recorded because it can open the doors for an appeal.  If the case finds the respondent guilty, then they can appeal based on missing or inaccurate information.  Even so, an appeal is not the best sought action in a Title IX proceeding.  It is almost always best to try to achieve a favorable result at the first hearing.

Finally, a respondent should request all the required deadlines and procedures in writing.  It is best for the advisor to initiate this contact and request the materials because any questions later can be traced to correspondence between the advisor and the school.  Once these deadlines and procedures are made known, the respondent and their advisor can use it to make sure the school is abiding by Title IX policies.  If they aren’t, concerns must be expressed through writing, preferably through the advisor, so there is written proof of communication and the date it happened.

How Well do I Need to Understand Title IX and the Atmosphere it Creates?

Respondents need to be aware of not only the policies and deadlines of Title IX policy, but also the atmosphere that arises.  This is how a particular school addresses a sexual assault complaint on campus.  Are there strong anti-sexual assault student groups around?  Are these groups supported by or have administrators that play a role?  Does the college have a history of bias against respondents?  Are they known for manipulating evidence or disregarding their own policies?  All of these add up to make a college’s unique Title IX disciplinary atmosphere and it can greatly impact how charges are addressed and resolved from school to school.

The Department of Education’s Office of Civil Rights (DOE-OCR) is not only responsible for enforcing Title IX nationwide, but they are also responsible for investigating colleges that mishandle allegations of sexual assault or altogether ignore them.  The shift toward aggressive investigating and reprimanding (often through withdrawing federal funds) colleges is because of the great increase in the number of schools under investigation.  While resolutions are gradually on the rise, active cases still far outnumber them.  Since 2011, only about 25% of mishandled Title IX cases have been resolved.  You can see the colleges still under instigation here.

The government has prioritized Title IX cases throughout the past years  including establishing the Task Force to Protect Students from Sexual Assault in 2014.  The Task Force is an intermediary agency that coordinates federal enforcement while helping schools meet obligations that are required by law.  The Obama Administration also heightened the awareness of sexual crimes throughout the nation and has threatened to take away the backbone of Title IX compliance: federal funding.  This means that colleges and universities are under intense pressure to respond quickly and effectively to sexual assault cases, and they avidly try to avoid any litigation from complainants who believe their case is not being handled properly.  Schools are also under pressure to avoid any litigation from the respondents as well.  Though the history of successful respondent litigation is not good, as more and more suits are filed, attorneys are beginning to see a consensus on which cases have a greater chance of success and which do not.  Respondents are beginning to have limited success because their cases can be tailored to the recent decisions made at both the state and federal court levels.

Because of the national outrage of sexual assault cases where students are given lenient sentences, and the fact that schools are dealing with more federal pressure than ever, the atmosphere on many campuses is not good for any respondent.  If a case is actively in the media spotlight, a respondent can expect that the atmosphere will be dismal, even to the point of infringing on their rights as schools address allegations of sexual misconduct even more aggressively than ever.  This information needs to be carefully considered and weighed when building a successful case for the respondent.

A student can not be lax about allegations according to what they see on the news.  Though some cases exist where the school does not punish severely, it is the exception loved by media, not the rule.  The sanctions for violating Title IX are severe, even for lesser charges such as stalking and harassment.  Suspension and expulsion are not only suggested punishments, but they are expected.  If a school is under federal investigation, or is in the eye of the media, it will be even more likely to impose the strictest sanctions possible for all Title IX offenses.

If a student is found responsible for sexual misconduct under Title IX, the results can have long term affects.  Suspension can pop up again after college when a future employer asks about disciplinary matters while at college.  The charges will have to be discussed because it will be listed on record.  Expulsion can make it impossible to find admission to any other school.

Does Title IX Have Equal Appeal Rights?

Students may be surprised to learn that Title IX does not require schools to provide appeal rights to either the claimant or the respondent, but most schools will do so.  If schools does decide to provide appeals, they are to give equal opportunity to both parties in the case.  The Department of Education’s Office of Civil Rights (DOE-OCR) recommends that schools provide relief through the Title IX appeal process if there is an error in the proceedings, new evidence becomes available that could shift the verdict of the case, or a student’s imposed sanction is disproportionate to the case.  The time frame for filing a Title IX appeal is usually very short: within mere days after the decision has been made.  Some schools provided even less time.

If the school provides Title IX appeals for one party, it must provide it for the other to remain in compliance.  Also, the standard of review that the school applies to one party’s appeal must be applied to the other party.  Individual schools can decide on their own Title IX appeals procedure as long as the the entire disciplinary process provides:

  • Quick and fair resolutions to the Title IX sexual misconduct allegations
  • Necessary steps are take to protect the complainant during the whole process

Because the appeals process is equal for both parties, a respondent must carefully consider if bringing up an appeal for an imposed sanction is worth it.  If they argue that suspension is too severe of a punishment for their violation, the complainant can file an appeal that suspension was too lenient and possibly bring a harsher sentence if successful.  Though this outcome may be unlikely, some schools can impose stricter sentences on a respondent based on the outcome of the appeals.

The decision to appeal is complicated and it is best made with the help of an experienced attorney that can properly weigh your options.  They can discuss with you and potential disadvantages to the appeal and fully prepare you to make an educated decision that is the best for your situation.

Manchester & Associates Title IX Defense

Title IX charges are incredibly complex and the consequences, which can be life changing, carry both short and long term.  It is important to secure the help of a knowledgeable attorney like Manchester & Associates as soon as allegations are made.  Families, students and employees need to realize that success is best achieved early in the game.  While the best outcome is to have all allegations dropped, some students and families still accept success based on the fact that they can continue their academic career after accepting responsibility.  Though this is a possible outcome and may not seem severe at first, it can still have a large impact on future goals.

Graduate schools, employers and professional licensing boards will inquire into a student’s disciplinary record.  It doesn’t matter if the incident is fresh, or years old.  With the highly competitive job market and limited graduate school space, a student with a Title IX violation on their record will be at a substantial disadvantage.

We are well versed in Title IX and school procedures as well as state and federal regulations.  It is possible to successfully resolve Title IX charges with the help of a skilled attorney.  Our strategies work.  With so much on the line, it is imperative to maximize your chances of success.  Contact Manchester & Associates today if you are facing a Title IX violation.  The sooner we are involved, the more we can help you.