DO COLLEGES AND UNIVERSITIES PROVIDE CHECKS AND BALANCES ON CONTRACTED INDEPENDENT TITLE IX INVESTIGATORS?
The answer is no. At least not that I have experienced, and I have been on the ground representing clients in Title IX proceedings allover the United States since 2013.
On at least three occasions, university adjudicative bodies have found my clients not guilty of rape after the initial “independent” investigator concluded the same clients were guilty.
On each occasion, the investigation report omitted relevant exculpatory evidence. The problem is that colleges and universities contract with the same investigators (most of the time lawyers or retired lawyers) and there is absolutely no system of checks and balances. One recent investigator assigned to a client’s case was even named in ongoing federal lawsuits and accused of bias. Instead of exercising an abundance of caution and perhaps, I don’t know, hiring an investigator without allegations of bias, the investigator remained on the case and turned out the most bias investigation report I have seen in years.
At the majority of colleges and universities, an investigator interviews witnesses and then unilaterally decides what is “relevant” and therefore makes it into the investigation report. Recently, a client accused of rape received an investigation report that contained an inquiry into his credibility. His accuser gave at least four different accounts of her story.
The investigator omitted them all from the investigation report and recommended my client be found guilty for rape. After a tough battle, we were denied a new investigation, but won at the hearing despite the biased investigation report and recommendation. What if my client couldn’t have afforded an attorney? I had to object because the investigator was asking leading questions, questions designed to illicit speculation, and even suggested scenarios to guide my client’s answers.
If I hadn’t been in the room when my client was being interviewed, the investigator would have been completely unchecked. Will the next student subject to this investigator’s bias and incompetence become a victim of system? The answer is yes, because colleges do not evaluate whether an investigator has a track record for impartiality and colleges almost never take steps to ensure the hearing committee or panel receives a complete and impartial investigation report.
Remember: although it is extremely important to hire an experienced Student Defense Attorney as early in 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, a lawyer with extensive experience representing and defending college students can offer invaluable help.
Jonathan Cook at New England Student Defense has represented over 150 students In Rhode Island and 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.