Title IX Investigations Into Sexual Misconduct Allegations
If you have been accused of rape, sexual assault, sexual misconduct including stalking, or sexual harassment while enrolled at a college or university, you may find yourself fighting to safeguard your freedom and preserve your academic achievements in dual proceedings. It is no small task.
Consequences include suspension, expulsion, "responsible for sexual misconduct" noted on your transcript, criminal prosecution with probation, prison, and sex offender registry. If you are accused, you need an experienced attorney for your case immediately.
We have successfully preserved the rights and academic accomplishments of clients accused of sex crimes at area colleges. Fearful of somehow undermining the client's defense at any criminal proceeding, many criminal defense attorneys refuse to challenge school disciplinary proceedings. This is a mistake. A successful defense assumes nothing and prepares for the worst. Worse, ceding academic achievements and waiving future academic eligibility is career crippling. If a jury later acquits the client of all charges, the forfeited academic achievements are likely unrecoverable. A civil lawsuit against the university for failure to protect your rights may result in monetary damages, restoration of a clean academic record, and other benefits. The only way to set this up is to fully challenge the university's allegations.
Often, an accuser starts with only the university procedure. The accused thinks that these are the only consequences and do not protect his/her criminal court rights, only finding out too late that s/he may suffer a more severe penalty. University investigations are incomplete and not geared toward the same issues as criminal investigations. If the criminal investigation starts much later, evidence is lost or polluted. A full defense investigation is the only way to protect your academic, civil, and criminal rights. Do not assume this is no big deal.
Fighting Back
An accused student may be procedurally disadvantaged, but he can mount an effective defense if he is smart, strategic, and refuses to be bullied. While colleges and universities often demand that the accused student submit to a prehearing interrogation by the appointed Title IX investigator, no student is required to participate in the investigation, provide a prehearing statement, or answer any questions. Most colleges and universities allow a student to submit a formal response to the allegations. A student can use a well-crafted, tactical response to attack the allegations and detail his defense.
The accused student is, of course, permitted to testify at the disciplinary hearing. If the college or university protocol requires the destruction of the video/audio recordings following the adjudication of the charges, it may be worthwhile for the student to testify in his defense - if he is capable of withstanding the pressure and adequately prepared. We are very good at preparing students to testify.
Title IX: Sexual Misconduct Disciplinary Proceedings
Colleges and universities, now "prosecute" allegations of sexual misconduct according to Title IX, Institutional Equity, and Student Conduct codes and policies. Sexual misconduct includes college domestic violence, hate speech, retaliation, as well as any sexual contact where consent is questioned. The decision of the U.S. Department of Education to coerce private colleges and universities to enforce these code/policies is not going away. These University hearings may decide if your son or daughter can ever receive a college degree, graduate school admission, professional license, or be employed in their chosen field.
Colleges and universities, however, refuse to provide students accused of sexual misconduct with cherished Due Process rights, such as the right to the active participation of counsel, confrontation of witnesses, presumption of innocence, proof beyond a reasonable doubt, jury, appeal, and other Constitutional rights. Instead, colleges and universities rely on a preponderance of the evidence process by selectively trained investigators and hearing officers where an honestly mistaken belief, revenge, alcohol blackout, and other false accusations can appear true. We have many years of experience fighting the procedures and presenting the truth. Our process gives the best chance of winning at the University hearing, while exposing Due Process, Contract, Infliction of Emotional Distress, Title IX, Title VII and other claims, that can overturn a negative outcome and recover damages.
Prosecution by the District Attorney's Office
If the alleged victim reports the incident to the police, the District Attorney's Office may initiate a formal criminal investigation into the allegations. The District Attorney's Office may, or may not, coordinate its investigation with that of the college or university. Should the District Attorney's Office choose to prosecute the client, the criminal trial will likely occur many months, if not years, after the school's disciplinary hearing and decision.
If the criminal case is resolved, either by way of a dismissal or acquittal, before the college or university becomes aware of the allegations, the college or university may, nevertheless, initiate disciplinary proceedings.
Retaining Counsel
Identifying and retaining a competent attorney may be critical to saving a student accused of sexual assault from the academic abyss and defending him against any ensuing criminal charges. If you have decided to retain counsel, do so as early in the process as reasonably possible. College and university investigations are completed relatively quickly, and closely followed by the disciplinary hearing. The student may have only days to devise a defense strategy, interview witnesses, and craft a written response.
Brief History of the Confluence of Title IX & Allegations of Sexual Misconduct
In 1972, President Richard M. Nixon signed Title IX of the Education Amendments of 1972 into law. Title IX states:
No person in the United States shall, based on 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.
Title IX guarantees "equal opportunity" to educational programs and activities at federally funded colleges and universities and, as construed, applies to admissions, treatment of students, and employment. Congress enacted Title IX to prevent federal resources from being used to fund discriminatory practices at colleges and universities and protect students - or those applying for admission - from being discriminated against. See, Cannon v. University of Chicago, 441 U.S. 677, 704 (1979). Title IX applied to the creation and implementation of college and university administration policies. It did not apply to students.
The "Dear Colleague Letter," of Russlyn Ali, Assistant Secretary for Civil Rights, U.S. Dept. of Education, dated April 4, 2011, radically transformed Title IX from legislation banning administrative discriminatory practices to legislation requiring colleges and
universities to prosecute students for any act of "sexual violence," "physical sexual acts perpetrated against a person's will," including rape, sexual assault, sexual battery, and sexual coercion, failure to obtain knowing and voluntary consent before sexual relations, and harassment. Without a congressional mandate or authorization or any regulatory-type framework, Ms. Ali notified colleges and universities that they were required to "take immediate and effective steps to end sexual harassment and sexual violence" by "designating an employee to coordinate Title IX compliance, and adopting and publishing grievance procedures," and implementing "education and training programs."
In their rush to comply with the "Dear Colleague Letter," colleges and universities have devised half-baked, unfair, and unreliable procedural protocols to adjudicate sexual misconduct allegations. That the accused students, the very individuals they are entrusted to educate and protect, are academically and summarily executed under these protocols is, unfortunately, of small consequence of these administrations. Showcasing their fashionable "get tough" approach to allegations of sexual assault trumps all other considerations.
