As recently as ten years ago it was extremely unusual for a lawyer to be called upon to help a student being investigated for sexual misconduct by a college or university. All that has changed in the last few years as result of increased attention by the U.S. Department of Education’s (ED) Office of Civil Rights (OCR). This type of allegation is also sometimes called a “Title IX Investigation.”
Facing such an allegation as a student can be extremely stressful. It poses a grave threat to the accused student’s future. Sanctions imposed by a school can range from a warning to probation to expulsion. Any adverse action can result in a black mark on an educational record that will impact applications to transfer to other colleges. It may also affect applications for grad school and employment.
Timelines for Handling Student Misconduct Cases
In 2011 the ED required that all cases be resolved in 60 days. Although that’s no longer the case, these cases move quickly, so it’s important to get good advice when a student first becomes aware of the allegations. The school investigator will want to interview the accused student as soon as possible.
What is Title IX?
Title IX provides:
No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.
As far back as the 1980s, courts recognized that sexual harassment was actionable under Title IX. At first, Title IX was mostly used as cause of action in a lawsuit alleging sex-based discrimination. That all changed radically in 2011 when the “Dear Colleague Letter” (DCL) was published. The DCL clarified the scope of Title IX by explaining that the requirements pertaining to sexual harassment also cover sexual violence, and laid out the specific Title IX requirements applicable to sexual violence. The ED was putting all schools on notice that they would now be responsible for incidents of sexual harassment or sexual violence on campus.
Types of Title IX Offenses
An official in ED’s Office of Civil Rights infamously said, “[T]he accusations—90% of them—fall into the category of ‘we were both drunk’, ‘we broke up, and six months later I found myself under a Title IX investigation because she just decided that our last sleeping together was not quite right[.]” Many sensational media stories have reported instances where fraternity parties or parties involving athletes have ended in charges of sexual violence.
While there are a number of claims that do fall into those categories, it is not nearly 90 percent. Our experience shows that the circumstances under which these accusations arise are actually much more varied and commonplace. Some allegations arise immediately after an incident, some arise much later. Some involve claims of sexual abuse or violence, but otherwise are assaults between students who were not engaged in any romantic or sexual relationship. Some allegations do not involve sexual harassment or sexual violence; they are more like stalking complaints.
It is becoming increasingly clear that there is no typical Title IX case. The facts of every case are critically important because they can have a great deal to do with outcomes for each student.
The procedure varies from campus to campus and is usually laid out in the student conduct code. ED guidance does set parameters though. All schools allow the student an advisor. An attorney is not permitted to represent the student—that is, an attorney cannot speak for the student—but an attorney can serve as the student’s advisor and help the student write letters, questions for witnesses, and so on.
It is important to find an advisor who has experience dealing with Title IX proceedings. Since Title IX proceedings are different from courtroom proceedings, it’s best to find someone familiar with these steps. An attorney who is experienced in Title IX proceedings can advise a student on many aspects of the case before the student takes any formal steps with the school.
One of the scariest aspects of the process is that there are very few procedural protections for those accused. The university does not have to turn over documents as it would in a civil lawsuit. Thus, a student is often forced to try their case with incomplete information.
This is especially challenging because most schools use the “preponderance of the evidence” standard (more likely than not) for decision making. This standard was required by the DCL, but that guidance has subsequently been withdrawn. Still, most schools continue to stick with a standard that contrasts sharply with the “proof beyond a reasonable doubt” standard used in criminal cases.
Most of these cases never result in criminal charges. However, many of them do result in referrals to the prosecuting attorney. Since we have a great depth of criminal defense we can help our clients in both of these areas.
What it’s Like to Have The Marshall Defense Firm in Your Corner
Respect and compassion are the foundation of our work. We take time to get to know you and your case. It’s where our fierce advocacy for you begins.
Then there’s our experience. For decades we have defended special-assault cases like Title IX hearings. From that and our on-going study of the law, medicine, and psychology involved in these cases, we have exceptional skill.
And we pool that skill. We work as a team. We know that no one lawyer, no matter how brilliant, will have all the good ideas for your case.
Our final ingredient is relentless investigation and preparation. When we step into court to defend you, we are ready to do it well.