ACCUSED STUDENTS: YOUR BASIC RIGHTS IN TITLE IX SEXUAL MISCONDUCT PROCEEDINGS
Students' Rights In Title IX Campus Hearings Are Derived From Title IX of the Education Amendments of 1972, Its Implementing Regulations, and Additional Rights That vary According to State Laws and Statutes, and Student Handbooks and Manuals. However, Some Basic Rights Are Universal.
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." 20 U.S.C. § 1681 et seq.
Doesn't Title IX Focus On Funding For Female Athletic Programs?
No. In fact, Title IX does not specifically mention athletics at all. In plain English, Title IX protects any person from discrimination based on sex or gender identity. Court rulings beginning in the 1980s and subsequent guidance from the Department of Education (DOE) recognize sexual harassment as a form of discrimination. Sexual harassment encompasses any form of sexual misconduct including sexual assault, rape, and other acts of sexual violence. Title IX mandates Colleges and Universities to promulgate policies and procedures to prevent and remedy hostile educational environments created by sexual harassment and sexual violence.
I Have Been Accused/Charged With Sexual Harassment, Sexual Assault, Rape, and/or Sexual Violence. What Are My Basic Rights?
- You have the right to a “prompt, fair and impartial” disciplinary proceeding. Every College and University, whether public or private, must provide an equitable process to both the complainant and the accused. See Campus SaVE Act.
- You have the right to a confidential disciplinary process. Disciplinary records are part of your education record and thus protected by federal privacy statutes with some exceptions an experienced Student Defense Attorney can help you understand. See FERPA.
- You have the right to notice of and access to your College's or University's written disciplinary policies and procedures.
- At public institutions ("state schools"), you have the Constitutional right to fundamental Due Process including notice and the opportunity to be heard.
- Private Colleges and Universities do not have to provide Due Process, but the vast majority of private schools' judicial systems provide for notice and some kind of hearing. Some schools have adopted the Singe Investigator Model as opposed to the Hearing Panel Model. An experienced Student Defense Atttorney can advise as to the pros and cons of each.
- You have the right to an equal opportunity to provide evidence and potential witnesses.
- You have the right to an investigation and resolution process conducted by administrators with proper training to handle sexual harassment and sexual violence cases.
- You have the right to have an advisor of your choice present with you throughout your disciplinary proceedings. This includes the initial interview and subsequent interviews with the College or University investigator.
- You have the right to be free from retaliation for exercising your rights.
- You have the right to the counseling and mental heath services available on campus.
The Protection Against Gender Discrimination Extends to the Adjudication Process Triggered by a Complaint of Sexual Harassment and/or Sexual Violence:
“Title IX bars the imposition of university discipline where gender is a motivating factor in the decision to discipline.” Yusuf v. Vassar Coll., 35 F.3d 709, 715 (2d Cir. 1994). An experienced Student Defense Attorney will have the ability to help ensure accused students are afforded all of their rights and procedures free from gender bias. Accused students and their families are under enough stress as it is. Let an experienced Student Defense Lawyer shoulder the worry about preventing and/or remedying a biased and unfair investigations and hearing processes, which are all too common.
On several occasions, I have witnessed College and University investigators violate accused students' Title IX rights by conducting biased and therefore inequitable investigations. As a result, Hearing Panelists receive biased Investigation Reports tainting their judgment thus precluding any notion of a fair an impartial decision of responsibility.
For example, in a few recent cases, the credibility of accused male students and their witnesses was heavily scrutinized by the investigators. In contrast, the investigators completely failed to probe the credibility of the complainants' witnesses despite unambiguously inconsistent statements. Additionally, I have witnessed investigators leave out exculpatory evidence seemingly because it did not fit their predetermined narrative.
Remember: although it is extremely important to hire an experienced Student Defense Attorney as early in Title IX Campus Disciplinary Proceedings as possible (as soon as a notice of charges is received, if not before), it is never too late. Whether a student has already been sanctioned and is in the appeals stage or even after an appeal has been denied, an experienced Student Defense Attorney can offer invaluable help. For more information visit the Department of Education's OCR Q&A on Campus sexual Misconduct.
Jonathan Cook at New England Student Defense has represented over 150 students at Colleges and Universities nationwide from Yale University and Georgetown University to the University of Houston and Tulane University.
These materials have been prepared by SRT for informational purposes only and are not intended and should not be construed as legal advice.