This article originally ran in The Legal Intelligencer on March 29, 2016.
Every semester, students across U.S. college campuses face serious accusations of sexual misconduct stemming from their colleges' Title IX policies. Often, the charges leveled against students use terms borrowed from the criminal code, such as "sexual assault" or "rape." However, students accused of Title IX violations, or "respondents," learn quickly that the procedural, constitutional and evidentiary rights usually afforded to those who have been accused of criminal offenses (or even civil causes of action) range from abridged to nonexistent at the college disciplinary level. With their futures on the line, respondents face significant challenges unless they develop a thoughtful course of action.
Obtain a Well-Versed Adviser
Make no bones about it: These cases are difficult for the respondent-students largely due to the procedural hurdles unique to colleges. Too frequently, students reach out for support after receiving an adverse disciplinary finding. In our experience, it is much easier to obtain a good or manageable result at the disciplinary level than it is to mitigate the damage of an adverse finding and sanction, which often include suspension, expulsion and stigmatizing notations to the student's academic record and/or transcript.
As Title IX disciplinary proceedings move swiftly—usually 60 days, pursuant to the U.S. Department of Education, Office for Civil Rights' (DOE-OCR) recommendations—the respondent should immediately obtain an adviser well versed in college disciplinary proceedings. Under the Campus SaVE Act, that adviser can be anyone. In our experience, respondents fare better in these proceedings when they retain an attorney experienced in Title IX proceedings to be their adviser.
The benefits of obtaining an attorney-adviser early in the process are manifold: The attorney-adviser can provide objective guidance as to strategy, can prepare the respondent for interviews or hearings, can ensure that the college follows its own procedures, can provide legal support and negotiate with the college's general counsel behind the scenes, and can help the respondent navigate the process.
Review, Understand College's Policies and Procedures
As there is no standard disciplinary model, one of the first items on any respondent's checklist should be to review the college's policies and procedures, which can be contained in the college's student handbook, code of conduct, and/or a stand-alone Title IX policy. These materials should be consulted to get a full understanding of the respondent's rights.
Additionally, the respondent and his or her adviser should be mindful of the type of disciplinary model that the college uses, as this will affect strategy. For example, many colleges use the single investigator model whereby an external contractor or an internal employee conducts the investigation, makes credibility determinations, and, ultimately, determines guilt and punishment. Other colleges use a hearing model, where the investigation and adjudication functions are separate, and the parties and witnesses present live testimony and evidence before a panel or adjudicator to review and to render the ultimate findings as to guilt and punishment. Some colleges have a blended model, allowing the investigator to make recommendations as to findings of fact, responsibility and sanction, and submitting these recommendations to a panel to accept or reject.
While Title IX disciplinary proceedings vary depending on the college's policies, there are a few constants:
• The standard of proof is low—preponderance of the evidence. As a practical point, be wary of improper burden-shifting. Colleges frequently attempt to shift the burden to respondents, essentially forcing them to prove their innocence.
• Where there are allegations of sexual misconduct, the DOE-OCR guidance advises against a college-sanctioned mediation between parties.
• The DOE-OCR recommends against direct cross-examination of complainants. Colleges often attempt to address this problem by allowing respondents to submit written questions to an intermediary, usually an investigator or adjudicator, to ask the complainant. The intermediary, however, retains discretion as to whether he or she asks the complainant the questions.
• If there is a concurrent criminal investigation, the DOE-OCR urges colleges to continue the disciplinary investigation.
• Everything must be equal. If the complainant can make comments to an investigative report, then the respondent can make comments. If the respondent can appeal the outcome, then the complainant can appeal the outcome.
Build a Record
During the investigation, the respondent and his or her adviser should consider what evidence to include in the factual record. Do not rely on the college to obtain relevant items as this process is heavily student-driven. Sources of evidence that should be considered (beyond the respondent's own testimony) include: text messages, social media postings, witnesses, dormitory logs, photographic evidence, and video recordings. In some instances, it is useful to submit expert reports on alcohol toxicity, medical records, and polygraph results.
After building your record, the next step is to ensure that it is accurately reported to the ultimate decision-maker. Many colleges provide respondents with an investigative report containing all the information that the final adjudicator will consider. At this time, it is incumbent on the respondent to submit corrections and objections to this report and to request follow-up from the investigator when necessary. Objections can be based on relevancy or can be used to highlight inconsistencies or prejudice in an opposing party's or witness's statements. Even if the respondent's corrections and/or objections are unheeded, it provides a record for an appeal or litigation later on.
Additionally, it is best practice to request written documentation as to all deadlines and procedural steps. If the college is failing to abide by the terms of its own policies, the respondent should attempt to redress the failing in writing to the college.
Understand the Climate at the College
Before preparing for a hearing, we often consider the climate on campus. Currently, the DOE-OCR has over 200 pending investigations against almost 200 colleges for allegations of failing to adjudicate claims of sexual misconduct properly. Chances are high that the respondent's college is under investigation or is stepping up its efforts to avoid a DOE-OCR investigation, which can be time-consuming and costly. Further, since the DOE-OCR has the power to strip the colleges of federal funding, colleges are under great pressure to avoid possible litigation from complainants who feel their colleges are not taking complaints of sexual assault seriously enough.
In addition to concerns from DOE-OCR, the college may face additional pressure from litigants. Many colleges have been sued by complainant-students and respondent-students, and, often, these lawsuits generate negative publicity for the college.
It is also prudent for the respondent and the adviser to consider the college community's temperature related to Title IX issues. Key questions to consider include: Are there strong anti-sexual assault advocacy groups on campus? Are key decision-makers part of those advocacy groups? Have key decision-makers made biased statements in the past?
Understand Your Appeal Rights
Most college disciplinary procedures allow respondents to appeal an outcome. It is important to know on what bases an appeal can be made. Typically, a respondent can appeal if there was a procedural error, if there is after-discovered evidence, and if the sanction was disproportionate. Beware of timing: Colleges frequently require respondents to submit an appeal days or hours after rendering a decision. Additionally, some colleges allow for appeals of appeals, and, depending on the state or whether the college is a public college, there may be administrative proceedings to challenge disciplinary findings. Practically speaking, arguments related to constitutional due process are typically unpersuasive at the appeals phase.
In conclusion, every respondent defines success differently. Some respondents are satisfied with a finding of responsibility as long as they can continue with their education. Some respondents wish to obtain professional licenses or certain kinds of employment where an adverse finding in their academic record or on their transcript could hinder career advancement. Therefore, it is important for the respondent to consider his or her goals for the disciplinary proceeding as well as his or her long-term professional goals and to articulate those goals to his or her adviser. This information informs future strategy in the event of an adverse finding
Patricia Hamill and Jeannette Brian are partners at Conrad O'Brien and Brittany Strandell is an associate with the firm. In addition to their practice in business litigation and white-collar defense work, Hamill, Brian and Strandell represent college students subjected to campus disciplinary proceedings or who have been suspended, expelled from or otherwise disciplined by their colleges following campus disciplinary hearings for alleged sexual misconduct or other alleged student code violations.
Reprinted with permission from the March 29, 2016 issue of The Legal Intelligencer. © 2016 ALM Media Properties, LLC. Further duplication without permission is prohibited. All rights reserved.