First, a Title IX investigation should not take longer than two months. If the investigation is not completed within 2 months, you may be able to challenge the university’s handling of the Title IX investigation as untimely.
PRESUMPTION OF “INNOCENCE” AND STANDARDS OF PROOF
Embedded in every school procedure must be a presumption that the accused person is not responsible for the alleged actions, until proven otherwise, and a reasonably prompt time frame for the entire grievance process to go through to a conclusion, including appeals. While each college or university can establish its own standard of proof for these kinds of sexual allegations, it must clearly state whether it chose either the “preponderance of evidence standard” (more likely than not) or the “clear and convincing evidence standard” (a higher standard that must leave a fact-finder firmly convinced that the allegations are true).
THE FORMAL COMPLAINT AND COMMENCING THE INVESTIGATION
The Title IX statute requires that every college or university investigate allegations made in any formal complaint. The school must also send written / e-mail notice to both the accuser and the accused of the accusations after receipt of this formal complaint. In other words, the administration may not simply dismiss an allegation out of hand nor pass off its responsibility to the complainant or some other person.
SUBMISSION OF EVIDENCE IN FURTHERANCE OF THE INVESTIGATION
The college or university must also allow the parties to submit their own evidence, including expert witnesses or reports, and the school cannot restrict either the complainant or respondent’s ability to gather evidence, such as through so called “gag orders.”
RIGHT TO AN ADVISOR, AN ATTORNEY, AND TO SUBMIT AND EVIDENCE
During the investigation, colleges must allow either party to have an advisor assist them, which can be an attorney. The University must also provide the advisors, respondents, and complainants with the evidence it gathered and allow for at least ten (10) days for the parties to examine and respond to that evidence. Additionally, administrators must provide advisors and the parties with a report summarizing the evidence.
DISMISSAL OF FORMAL COMPLAINTS
Any allegations that, even if true, do not comport with the definition of sexual harassment, must be dismissed, at least for these specific proceedings. The school may also dismiss a complaint if the accuser indicates in writing that they want to withdraw the complaint, if the accused person is no longer at the school, or if the school is unable to obtain enough evidence. It’s important to note that, under Title IX, schools cannot access any party’s medical records without that person’s written consent, even as part of this kind of serious investigation.
TITLE IX HEARINGS
Through their advisors, both parties can present questions and cross-examine their adversaries and witnesses at a TITLE IX hearing. These are almost always conducted virtually, via Zoom or video conference.
IMPOSING SANCTIONS, PUNISHMENT AND PENALTIES
First, and perhaps most obviously, Title IX requires that a school provide remedies when a respondent is found responsible for sexual harassment. Equally relevant, the college must treat the accused fairly and not impose any punishments or sanctions unless there is an indication of responsibility. Simply put, educational institutions must remain compliant with the various procedural rules set forth by statute.
And while punishments and remedies can impose a burden on an accused person who is “guilty” or responsible – including probation, no-contact orders, suspension, or expulsion, those sanctions must be aimed at allowing the victim-complainant to continue to have equal access to the education the school provides as well as any support structures to facilitate this objective.
RIGHT TO APPEAL
Although the basis of an appeal is not merely dissatisfaction with the outcome, both parties have an equal right to appeal. Although there is a short list of appellate grounds, when newly discovered evidence or a procedural flaw is a satisfactory basis even if unsuccessful.
If you or your child is being investigated for an alleged Title IX violation on campus, contact our skilled Title IX investigation defense lawyer 24/7 for a free case evaluation.
