TITLE IX DUE PROCESS
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Due Process in Title IX Cases
Title IX provides due process to both complainants and respondents in sexual assault cases on the campuses of educational institutions or at school-sponsored events. Due process refers to the procedures and rules that ensure the fair treatment of individuals who are involved in disputes. The Office For Civil Rights, however, recently created considerable confusion and uncertainty about certain aspects of Title IX investigations and the rights afforded to all parties involved.
At Nesenoff & Miltenberg, LLP, our highly experienced Title IX attorneys understand the complicated and personal natures of these cases and work with both Title IX complainants and respondents. We strive to minimize the disruptions these investigations can cause and are committed to holding schools responsible when they violate the rights of faculty, staff, and students. To schedule a consultation with one of our Title IX lawyers, call Nesenoff & Miltenberg, LLP today at (212) 736-4500 or send us an email through our online contact form.
Title IX: Due Process Basics
Title IX is a federal law that prohibits sexual discrimination at academic institutions that receive federal funding—which is virtually all schools, including all public high schools, colleges, and universities. The law requires schools to take appropriate measures when a student files a complaint alleging sexual assault. This is true whether the alleged assault took place on campus or at an off-campus event. Both victims and the accused have due process rights in all investigations and hearings. Under Title IX, however, schools can violate a person’s due process rights in a sexual assault case through:
- A biased or inadequately trained hearing panel
- An inability to introduce evidence
- The refusal of a request to cross-examine a witness, the accuser, or the accused
- Interfering with attempts to consult an attorney
- An application of the wrong standard of proof
- Nondisclosure of evidence against the accused
Due process requirements can vary widely based on the facts and circumstances of a particular case. The best way to protect your due process rights is to contact an attorney as soon as you can. If, however, your case has already come to a conclusion and you believe that a school violated your due process rights, an attorney may still help after the fact. In addition, you may initiate a Title IX enforcement action against your school that could potentially result in compensation for you. To discuss the specifics of your case with one of our highly knowledgeable Title IX and Conduct Code attorneys, call our office today.
Title IX Changes May Favor the Due Process Rights of the Accused
Many see changes to the law outlined in recently issued Office For Civil Rights (OCR) guidance as strengthening the rights of the accused. Previous guidance issued by the Obama administration required schools to use a legal standard of proof referred to as the “preponderance of the evidence.” Under this standard, to adjudicate the accused guilty, a hearing panel only needed to find that it was more likely than not that the alleged assault occurred. Under the new guidance, schools may choose between this standard and the more stringent standard of “clear and convincing evidence,” which lies somewhere between the “preponderance” standard and proof “beyond a reasonable doubt,” which is used in criminal prosecutions.
The changes were made in response to what some saw as schools going too far to protect victims’ rights to the detriment of the accused’s rights to due process. A perceived injustice that the changes seek to eliminate are schools’ overuse of “interim measures” that can hurt the accused’s ability to continue to pursue studies during a pending investigation. Interim measures that schools can employ while a sexual assault case is pending include:
- Issuing a no-contact order between the parties involved
- Changes to living arrangements
- Changes to class schedules
- Changes to employment
- Exclusion from certain facilities or school-related activities
- A mandatory leave of absence
- Suspension
Anecdotally, many people were accused of sexual misconduct and had their lives upended, and only later did the schools clear them of any wrongdoing. In extreme cases, the above interim measures were so disruptive that they forced people to leave school and never return. Instances like these motivated some changes to the law, which seek to restore due process rights to people who were accused of sexual assault—much to the chagrin of victims’ rights advocacy organizations.
Other changes to the law, in addition to allowing schools to raise the standard of proof, include:
- Schools must afford any rights or opportunities made available to one party to the other party.
- Schools are not allowed to used fixed operating assumptions or rules that favor accusers over the accused in investigations related to sexual assault.
- Schools no longer have to resolve Title IX cases within 60 days.
Call Nesenoff & Miltenberg, LLP Today to Speak with an Experienced Title IX Attorney
If you are involved in a sexual assault case involving an investigation conducted by an academic institution, call an attorney as soon as possible, because the representation of a lawyer will ensure the full protection of your legal rights. At Nesenoff & Miltenberg, LLP, our lawyers have extensive experience with both Title IX and college code violations, and we will do everything we can to bring your case to a successful resolution. To schedule a case evaluation with one of our Title IX attorneys, call our office today at (212) 736-4500 or send us an email through our online contact form.