March 28, 2024
The first thing to understand about preparing for a Title IX investigation and/or disciplinary proceeding for which you are the respondent (in other words, the person accused of misconduct under Title IX) is that you should absolutely prepare for such an investigation and hearing and that you should not do it alone for reasons that will become clear in this article.
The second thing to understand is that if you are searching online for a definitive guide to the specifics of how Title IX investigations and disciplinary hearings work across the country, you are likely to be disappointed. Although one might expect there to be uniform rules and procedures for Title IX investigations and hearings given that Title IX is a federal law applicable to all schools across the country receiving federal funding, the fact is that such Title IX proceedings – as well as the underlying codes of conduct on which such proceedings are based – vary widely by individual educational institutions.
Further complicating matters, while such rules and procedures at individual institutions must adhere to federal guidelines which both provide for specific mandates in some areas and latitude for schools to come up with their own rules and procedures in other areas, these federal guidelines continue to change with each of the last three presidential administrations proposing significantly different Title IX procedural regulations than had existed before (both the Obama and Trump administrations implemented such changed procedures, while as of the writing of this article in early 2024 the Biden administration proposed regulations have yet to be implemented).
Explanation of the Investigation Process
Pursuant to Title IX, educational institutions are required to investigate and take appropriate disciplinary measures relating to sexual misconduct, including sexual violence, sexual assault, sexual harassment, sexual discrimination, and stalking. However, Title IX leaves it to the individual schools to define the exact parameters of what such misconduct is. For example, many Title IX proceedings relate to accusations of non-consensual sex between students. However what is and is not non-consensual sex may vary among schools, as different institutions might have different definitions of what is considered “consent.” Schools should provide handbooks that specifically define the types of misconduct for which students (in addition to faculty, administrators, and employees) can be disciplined.
Just as the rules for what constitutes misconduct will vary among schools, investigative processes will also vary widely among educational institutions. Under current federal guidance, a Respondent in a Title IX investigation is required to be provided with notice prior to the interview with an investigator, and this notice is required to indicate the specific sections of the code of conduct that the Respondent is alleged to have violated, the time and location of the alleged violations, and the identity of the complainant. The Respondent is also supposed to be provided with sufficient time to prepare before meeting with an investigator.
Upon receipt of this notice, a Respondent might believe that the best approach is to simply show up to the interview and just tell the truth. This is not a good plan for many reasons. Whether the Respondent believes that the “truth” is an exonerating story that will set the record straight, or plans to admit to any wrongdoing and apologize for it, it is far better for a Respondent to work with experienced Title IX defense counsel in preparing for this interview (or series of interviews). It is important for a Respondent to work with a knowledgeable advisor who can help them understand the specific allegations that are being made, go over the facts of the incident (which might have occurred long before the complaint and/or might have occurred while the Respondent was inebriated) along with any related evidence to present a coherent and compelling story from the outset (rather than remembering important details later which could be suspect), and then formulate a general strategy for how to approach the investigation.
It is also important during this investigation period to be cognizant of other concerns, such as avoiding contact with the complainant that could be perceived as retaliation and making statements to others that could be used as evidence against the Respondent.
Understanding the Title IX Disciplinary Hearing Process
Similar to the investigative process, the disciplinary hearing process can vary significantly across schools. The investigation may lead to a disciplinary hearing, similar to a courtroom trial in the general sense that others will act as a judge of the veracity of the allegations and any disciplinary measures that may be handed down.
At the same time, a Title IX hearing differs in many important ways from a criminal trial. Rather than being judged by a jury of neutral peers that attorneys play a role in selecting as would be the case in court, a Title IX hearing board might consist of administrators, professors, and even students who might have far more interest in taking swift action against those accused of sexual misconduct rather than providing due process protections to the accused (and “due process” as a legal term of art may not even be applicable to proceedings in private schools). Respondents should not expect the same evidentiary protections in Title IX proceedings as in court, such as the ability to prevent hearsay statements from being admitted and the right to cross-examine witnesses testifying against the Respondent. Additionally, unlike a criminal case where guilt must be proven beyond a reasonable doubt, some schools may adopt procedures to discipline students, administrators, and professors on a simple “preponderance of the evidence” standard.
It can be tempting for a Respondent accused of a Title IX violation to not take it at seriously as one would a criminal trial, but the consequences can in some cases be far worse in a Title IX proceeding, which can result in an expulsion from school and a disciplinary record that makes it extremely difficult to be accepted at another school. For these reasons, it is important for those accused of Title IX violations to work with experienced counsel who, in addition to guiding them through the investigative process, can advocate for them effectively in disciplinary proceedings, including presenting exculpatory evidence, challenging the sufficiency and credibility of evidence presented, and executing strategies that mitigate consequences while promoting the Respondent’s rights.
Contact one of our Experienced Title IX Attorneys
The attorneys of Zweiback, Fiset & Zalduendo understand the stress, anxiety, and fear that comes with a Title IX disciplinary proceeding – or even the threat of such a hearing – and we provide zealous counsel and representation to help our clients avoid negative outcomes and move on with their lives.
If you are a student, professor, administrator, or staff member who is facing or potentially facing the prospect of a Title IX disciplinary proceeding based on allegations of sexual misconduct, professional misconduct, academic misconduct, code of conduct violations, discrimination, or other violations, it is important to take decisive action to protect your interests. The approach of attempting to “go it alone” in the hope that the issue will be quietly resolved in a positive manner without the help of experienced counsel and guidance can result in irreversible negative consequences that can impact your professional life for decades to come.
Contact our office to speak with an experienced Title IX defense attorney regarding your situation today.
