Title 9 Q and A

Question and Answers Regarding Title IX Proceedings

Recent Case Result

I recently won an appeal of an unfavorable Title IX decision that had been rendered to a senior at UC Berkeley who had represented himself in a Title IX hearing regarding allegations brought by an individual he had dated, non-exclusively, for approximately one month. The student was determined to have violated Title IX (dating violence, harassment) and other school policies (theft of a dorm key the student’s boyfriend had given him, and was suspended for 2 years from college.

On appeal, I raised procedural errors (the entire investigation lasted one and one half years with no notice or showing of good cause for the delay), the investigator was extremely deficient in her investigation of this case (she interviewed the complainant’s witnesses telephonically 7 months after the alleged incident, without consideration for their bias, collusion, inconsistent stories, lack of ability to perceive what they claimed to have seen, and did not even consider (or remember at the appellate hearing) any of the substantial exculpatory documentary evidence my client had provided her in person and in email.

Despite a short delay of one semester while the appeal was pending, my client will be able to graduate this coming spring.

Q. Who can assert a Title IX claim?

A. Any student of the college or university. The claim can be investigated even after the Reporting Student graduates or leaves the college or university. The claim can be made against another student, teacher or staff member or against a student organization.

Q. How will you be notified if there is a Title IX Proceeding against me?

A. The college or university will notify a student by email of the specific claims made by another student or university staff that constitute a Title IX violation.

What kinds of claims can be filed as Title IX matters:

Sexual assault, sexual harassment, violence in a dating relationship, stalking, cyber stalking or bullying.

Sexual assault is any sexually oriented touching or rape that is non-consensual, and includes conduct towards a person who is incapacitated by alcohol or drug intoxication and thereby legally uncappable of consenting.

Sexual harassment can include calling names, insults, and treating derogatorily in a sexual manner. Sexual harassment can also include stalking, cyber stalking and bullying and using electronic and social media to stalk, harass and bully someone.

Q. How long after an incident can a student report a Title IX claim?

A. For most sexual assault Title IX claims, they must be made within one year of the incident, and if the reported student claims they personally were involved with drug use or alcohol on campus regarding this incident, the reporting student will be given immunity for this misconduct. The same is not true for the accused student.

Q. What should you do when you receive a notice that a Title IX claim has been  filed against you?

A. You should immediately contact an attorney experienced in Title IX proceedings to review the claim with you and help you understand the allegations, help you understand your school’s policies and procedures for Title IX proceedings, help you strategize and prepare your defense, including compiling witnesses, witness statements and evidence that may be favorable to you, and act as your advisor throughout the Title IX proceedings.

Q. What procedure is involved in Title IX cases?

A. Title IX proceedings are required to follow federal guidelines. Most schools require that the investigation of a Title IX claim be completed in 60 days (although the time can be extended if witnesses are unavailable because of a vacation, etc.).

In the notice of the allegation, the school requests that the accused student contact the Title IX investigator to make an appointment to meet to review the allegations. The student may take an advisor with them who can advise only, but cannot speak on behalf of, advocate for, or represent the accused student. The accused student should have an experienced attorney with them to avoid making statements that could be used against them in a related criminal proceeding, avoid making inconsistent statements, and avoid making statements that could make matters worse.

The investigation phase involves first viewing the allegations, then viewing the evidence presented by the reporting student, then presenting evidence that is favorable to your defense or mitigation of the claims against you, then proposing questions to the reporting party and answering (or not) any questions propounded by the reporting student, and then reviewing the final investigation report which summarizes the evidence and determines if the alleged Title IX violations were committed or not.

At USC, when you go in to view the evidence, they take all your personal belongings and permit you to only look at the compiled evidence and take notes. They count the pages when you are finished, and will not return your belongings until they have accounted for all of their material.

If the school feels that a crime has been committed, the school can report the matter to the police, whether the reporting student wants to do so or not. Also, the school will wait to advise an accused student of a Title IX allegation until after the police have completed their criminal investigation, which usually involves having the victim make a pretext phone call to the accused student, which the police listen to and record for further criminal proceedings. It is very important to have an experienced attorney assist you so you do not make incriminating or inconsistent statements that can be used against you in criminal and Title IX proceedings.

The burden of proof used by Title IX investigators is a preponderance of the evidence standard, which is a very low civil burden of proof (50.01%) and not beyond a reasonable doubt, which is the standard used in criminal cases in court. This is significant for many reasons. First, school officials are used to investigate allegations of rape and other sexual misconduct, which are criminal allegations, yet the school officials are not forensically trained. Second, Title IX proceedings are gender biased, which means they are slanted in favor of female reporting students and against male students who make up the majority of the accused. Third, with this low burden of proof, female reporting students are usually believed over male accused students even if they waited a year to report, even if there is no scientific evidence of the alleged sexual misconduct or rape, and even if there is very little or no corroborating evidence. Fourth and finally, the consequences of being found in violation of Title IX can result in suspension or expulsion from school, a permanent notation on your school record and ruining the accused future plans of obtaining a degree, professional license or prestigious job.

After the final report and determination, the report is submitted to a Title IX officer to recommend a sanction for the conduct, or, for example USC sends the final report to a sanction panel comprised of students, professors, and administrators for a recommended sanction. All notices and reports are sent by email to the accused and reporting students, separately. Sanctions can include a warning; exclusion from a class, section or school housing; probation, with requirements such as counseling, community service and restitution; deferred suspension, which is like probation; suspension for a semester, a year or more depending on the severity of the conduct; and expulsion.

School disciplinary records will always include Title IX outcomes and sanctions imposed. Title IX officers will have access to and will consider past discipline and violations. Deferred suspensions, probation and suspensions will be placed on transcripts and official records only during the time of the suspension. Expulsions are permanently on student records. At USC, the school has the sole discretion to remove a Title IX suspension from a student’s record after the suspension period is over, if the student has been compliant with any requirements and has been accepted back to the school.

Q. What if the Title IX decision is wrong or the sanction imposed is too harsh?

A. There is an appeal procedure that is usually limited to three grounds: the facts were stated incorrectly by the investigator and do not support the findings; there is newly discovered evidence which was not known or available at the time of the investigation which supports a different outcome; and the sanction recommended is grossly disproportionate to the conduct determined to have occurred or to the school’s own policies and procedures. Again, it is important to have an experienced attorney assist you with an appeal because of the short time to prepare, raise and argue the correct issues, and submit an appeal that has the most likelihood of success for you.

Typically, an appeal must be filed within 5-10 days of the sanction being issued to the accused student. At USC, it is 5 days. Both sides may appeal. If the reporting student does not like the outcome or recommended sanction, she may appeal as well as the accused student. Appeals must usually be submitted electronically through a portal on the school’s Title IX website.

If no appeal is filed, the decision becomes final. If an appeal is filed, it is usually assigned to an assigned appellate officer or to an appellate panel who decides if the outcome and sanction are valid. If the appeal is decided favorably, the sanction can be modified. If not, the decision becomes final.

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