Title IX Investigations

Facing Title IX Investigations on College Campuses

Title IX was originally known as the law that required colleges to provide equality between men’s and women’s sports teams. It is now known for its prohibition against sex discrimination, including sexual assault, on college campuses. The Jeanne Clery Disclosure of Campus Security and Campus Crime Statistics Act — a federal law passed by Congress in 1990 makes it mandatory for colleges to report all sexual assault crimes that take place on campus.

In response to these set of laws, colleges administrations created Title IX offices operated by a Title IX coordinator, and the schools drafted individual rules and policies that varied from school to school which were intended to eliminate or punish certain prohibited conduct to include sexual assault, sexual violence, domestic violence, dating violence and stalking. Typically, these rules required school employees to report a prohibited conduct incident to the Title IX coordinator. Students do not fall under the requirement to report but have the option of reporting a prohibit conduct incident to the office of the Title IX coordinator.

What to Expect in the Event of a Title IX Complaint

When a student of college employee reports a prohibited conduct incident, the Title IX Coordinator (or the person delegated by the Coordinator) will conduct an initial assessment of the incident (“complaint”) to determines if an investigation is necessary. If so, there will be an investigation in a prompt fashion, usually 60 days, pursuant to the rules established by the school to determine what occurred and whether steps must be taken to resolve the situation. The investigation may include interviewing the reporting party (the accuser) and the responding party (the accused) regarding the allegations, as well as other person who may have information relevant to the allegations. Upon completion of the investigation a report will be prepared to include a summary of the complaint, a description of the investigation, and the findings of fact.

If both parties are students, the investigation report will be given to both the reporting party and the accused. The Title IX Coordinator will determine if the student should be charged with a violation of the Student Code of conduct for possible sanctions by the school.

In 2011, the Obama administration’s Office for Civil Rights notified colleges that sexual harassment and assault create an environment so hostile that women’s access to education is jeopardized and is therefore violating their civil rights. The Obama administration did not provide a uniform policy for how schools should adjudicate cases, but schools that failed to uphold standards risked losing federal funds. The effect on schools was a lowering of their burden of proof when assessing claims to the “preponderance of evidence” standard. This is a burden of proof commonly used in civil lawsuits. Under this standard, if an accused student is found more likely than not to have committed the offense, he or she will be found “responsible” for the prohibited conduct under in these campus hearings. Preponderance is often described as 50.01 percent certainty of guilt. In contrast, the standard used in criminal trials requires “beyond reasonable doubt.”

Recent Proposed Changes to Title IX Investigations

In November of 2017, the U.S. Department of Education proposed significant changes to the rules governing Title IX investigations involving sexual assaults. Primarily the accused would be guaranteed the right to cross examine the accuser. The Obama-era guidance had discouraged direct cross examination because of the potential of retraumatizing the victim.

Additionally, colleges would have the option to use the clear and convincing burden of proof standard, a higher standard, rather than the its-more-likely-than-not preponderance standard.

Also, the proposed rules limit the college’s responsibility to investigate cases where there are formal complaints and the alleged incidents happen on campus or with in an educational program or activity. The draft rules prohibit the single-investigator model; instead it requires a decision maker separate from the Title IX coordinator or investigator.

The Importance of an Attorney for the Accused in a Title IX Investigation

Having an attorney representing the accused in a Title IX sexual assault investigation can prevent serious and lifelong consequences. If you or someone you know is the subject of a Title IX investigation on a college campus, it is in your best interest to have representation by an experienced attorney.

Ken Swartz represents individuals in Miami-Dade County and throughout Florida who are the subject of Title IX investigations on college campuses. Feel free to call the Swartz Law Firm to schedule a consultation with an attorney experienced in representing students who have been accused of sexual assault and face Title IX investigations.