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COLLEGE STUDENTS BEWARE! TITLE IX SEXUAL MISCONDUCT CHARGES ARE A TRAP FOR THE UNWARY

Paul A. Morello, Jr. July 19, 2018

COLLEGE STUDENTS BEWARE!        

 IF ACCUSED WITH SEXUAL MISCONDUCT ON YOUR COLLEGE CAMPUS

TITLE IX IS A TRAP FOR THE UNWARY!

Sexual violence against women is a pervasive problem on college campuses today. The Department of Education (DOE) and the Office of Civil Rights (OCR) of the Department of Education has looked to Title IX to attempt to remedy sexual harassment (which includes sexual assault) on College campuses.

Title IX basically states that “no person in the United States shall on the basis of sex be excluded from participation in, be denied the benefits or be subjected to discrimination under an education program or activity receiving federal financial assistance.” Therefore, as a matter of law, sexual harassment under Title IX encompasses a wide array of behavior including sexual advances, favors and other verbal, nonverbal or physical conduct of a sexual nature. It also encompasses sexual misconduct including sexual assault.

In an effort to deal with sexual violence on campus, the federal government has employed Title IX as a remedy and enforcement measure. Pursuant to that end, DOE and OCR, promulgated guidelines to address this issue in a “Dear Colleague Letter”, outlining the investigation and hearing procedures that colleges must follow to remain in compliance with Title IX, the federal statute that prohibits sex discrimination in education. Colleges that fail to follow these guidelines are subject to the loss of federal funding for their institutions.

These were extremely controversial in that they impaired the procedural due process rights of students (predominantly male) accused of sexual harassment and sexual violence and threatened the fundamental fairness of the colleges’ disciplinary proceedings in hearing sexual harassment and sexual misconduct cases.

Since their failure to comply with Title IX will result in a college’s suspension of their federal funding, they have a great financial incentive to find a student accused of sexual harassment guilty and in the process have trampled on the student’s fundamental due process rights to a fair and impartial investigation and hearing. 

Recognizing this, the DOE has recently withdrawn the 2011 “Dear Colleague Letter” and the guidelines under which colleges were required to operate. The DOE will be issuing new Regulations pertaining to Title IX hearings, but until then, present college rules governing Title IX investigations and hearings remain in effect.

The procedures and requirements in sexual misconduct investigations and hearings vary widely from college to college. In short, colleges are bound by their own investigatory and hearing policies and procedures, by constitutional due process mandates, and by state and federal law.

With respect to sexual misconduct complaints, generally schools, in their student handbook, state that they provide for the following:

  • Notice to the accused student of the investigatory and hearing procedures:

  • An adequate, fair and impartial investigation of complaints;

  • A hearing process where parties have an equal opportunity to present evidence;

  • A reasonably prompt resolution of the complaint.

In practice, nothing could be further from the above. In many cases, schools have not been successful in the providing for the fair investigation and adjudication of claims of sexual misconduct, which has resulted in both the accuser and now more frequently the accused (again predominantly male students) suing their schools for failing to provide sufficient due process protections in the investigatory and hearing process

Although schools have both a financial interest and moral obligation to protect the rights of the victim, it is equally important that they protect the rights of the accused, especially those who may have been wrongfully accused.

Because most of these complaints of sexual misconduct result in expulsion as a sanction, the process is highly emotional since an expulsion will impact a student’s ability to continue their education at another institution of higher learning.

In an effort to comply with the mandates of the “Dear Colleague Letter”, schools have created an environment and process that is biased against the accused male student and violates fundamental notions of fairness, such as adequate notice of the charges, notice of the evidence to be offered, and an unbiased hearing.

Many school rules regarding the investigatory and hearing process lack the following:

  • Adequate notice of the facts and violations complained of;

  • Adequate advance notice of the hearing dates;

  • The opportunity to have a trained advisor or advocate (such as a lawyer) present during the investigatory process and at the hearing;

  • The right to cross examine witnesses;

  • The admission of reliable evidence;

  • The right to examine statements or other documentary evidence prior to or at the hearing.

  • A higher burden of proof beyond a preponderance of the evidence.

Since these hearings are in fact similar to criminal proceedings and carry severe penalties (suspension or expulsion), it should be expected that they will adhere to traditional notions of due process and fundamental fairness, but in fact they do not.

In practice, there is a presumption that accused students are guilty and the lower standard of proof (preponderance of the evidence as opposed to the criminal standard of proof beyond a reasonable doubt) makes it easier to convict and increases the risk for an erroneous finding of guilt and even encourages students to make baseless claims.

What should a student do who is aware that a complaint or investigation of sexual misconduct is being pursued?

FIRSTLY, CONTACT A LAWYER IMMEDIATELY. DO NOT WAIT. DO NOT ATTEMPT TO HANDLE THIS ON YOUR OWN. YOU ARE AT A SEVERE DISADVANTAGE IF YOU DO SO.

                                                                                                                                     

SECONDLY, DO NOT RESPOND IN ANY MANNER TO THE ALLEGATIONS BEFORE YOU CONSULT YOUR LAWYER. Speak to no one (including friends or roommates) but your lawyer. The college’s investigator will attempt to have you give a statement to them. They will tell you that it is in your best interest to do that and that it will be easier for them to help you out in the event that you are found in violation of a Title IX offense. DO NOT GIVE THEM A STATEMENT, either orally or in writing. REMEMBER, ANYTHING YOU SAY CAN AND WILL BE USED AGAINST YOU.

A TITLE IX INVESTIGATION AND HEARING IS A VERY SERIOUS MATTER WHICH CAN HAVE A PROFOUND IMPACT UPON YOUR FUTURE.

Here at Donovan & Morello, LLP, we are experienced criminal and civil litigators. If you are the subject of a Title IX complaint, contact us at 860-635-7373. We can help.

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