Title IX General Procedure ​

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Once a complaint is filed with an institution’s Title IX Coordinator, the first thing that happens is that the complainant will receive information regarding the institution’s Title IX policy and procedures, along with resources for reporting criminal offenses to campus and local law enforcement. Next, notice is given to the accused party before any initial interview takes place. Then, the investigation occurs through interviews and gathering relevant information and documentation. A copy of the investigative report will be made available to both parties. The complaint can be resolved either through informal resolution (mediation) or formal resolution (a hearing). Following the conclusion of a hearing, sanctions or remedies will be recommended. Appeals can be filed following this step.

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Title IX Updates as of May 2020

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The central feature of the new policy is what schools are responsible for. Previously, schools had an overarching responsibility “to take effective action to prevent, eliminate, and remedy sexual harassment” by “changing the culture” of the school. The new approach focuses on schools’ responsibility in addressing specific instances of serious sexual misconduct.

 

Additionally, there is now a requirement that postsecondary institutions (not elementary or secondary institutions) hold live hearings in sexual misconduct cases and allow for cross-examination of any witnesses. During investigations, it is required that the decision-maker has to be someone different than the institution’s Title IX Coordinator or investigator. Decision-makers review the record compiled by investigators and hear witness testimony. The testimony of witnesses who refuses cross-examination cannot be relied on.

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The Role of Advisors in the Investigation

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Throughout the course of the investigation, each party is entitled to choose and consult with an advisor. The advisor can be any person, including an attorney.

 

Advisors can accompany their respective parties at any meeting or proceeding related to the investigation or formal resolution of a sexual misconduct case. The advisor can support and give advice to their respective party, but are not allowed to speak on their behalf. If a party does not have an advisor, they can request that one be assigned to them by the institution’s Title IX Coordinator.

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Due Process Requirements

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All students or employees accused of sexual misconduct are assumed innocent until proven guilty. Along with that, the burden of proof falls on the institutions, and pre-hearing accommodations cannot place a heavier burden on the accused than the accuser.

 

The standard of proof used no longer has to be the “preponderance of the evidence,” but rather the school has the choice between the latter and “clear and convincing evidence.” However, the school must be consistent in the standards they use for all sexual misconduct cases.

 

All school rules governing sexual misconduct proceedings and all of the training provided by the Title IX Coordinator has to be free from any “sex bias,” meaning that investigators and decision-makers cannot draw conclusions about a party’s credibility based on their status, whether they be the accused or accuser. This prohibits any investigator or decision-maker from outright believing the victim and considering the complainant to be any more credible than the respondent.

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Procedural Mandates

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At the beginning of the investigation, the institution has to give both parties a written explanation of the allegations with “sufficient details known at the time and with sufficient time to prepare a response before any initial interview,” and both parties must be informed in writing if the nature of the allegation changes at any point in the investigation. Additionally, both parties have a right to have access to all evidence collected by the investigator.

 

Once the hearing is over, the decision-maker has to provide “a statement of, and rationale for, the result as to each allegation.” The decision can be appealed by either party on the basis of 1. Procedural irregularity, 2. New evidence, or 3. Bias on the part of the decision-makers or investigators.

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How We Can Help

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The Pickett Law Group, PLLC is an experienced law firm with two generations of former prosecutors, who have fought from both sides of the courtroom on all types of legal issues, including Title IX Cases. Our attorneys can help ensure that you have the best chances possible of winning your case, regardless of which side you are coming from. Contact us today and we will begin fighting on your behalf.

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