Philadelphia Criminal Defense Blog
Title IX Update: US Dept of Education Releases New Guidelines for Campus Sexual Assault Allegations
Defense Attorney Zak Goldstein
The United States Department of Education has released new guidelines on how colleges and universities are to handle sexual assault allegations on college campuses. Secretary of Education Betsy Devos said that these new regulations will allow colleges and universities to “combat sexual misconduct without abandoning our core values of fairness, presumption of innocence, and due process.”
For the better part of the decade, individuals who were accused of sexual assault had scant protections. Specifically, there were reports that colleges and universities felt obligated to side with the accusers based on Obama Administration guidelines that were issued in 2011 and 2014. Those guidelines threatened severe repercussions (i.e. losing federal funding) if they did not ramp up their investigations. They also led to many schools starting investigations based on a belief that they should believe the complainant instead of applying a presumption of innocence. Now, although the new regulations are not perfect, accused students should find themselves with more rights and protections when confronted with potentially false allegations of sexual assault and harassment.
What is Title IX and How Does it Relate to Sexual Assault Allegations?
Title IX is a federal civil rights law signed by President Richard Nixon in 1972 as part of a larger Education bill. At its core, Title IX prohibits discrimination on the basis of sex in educational institutions when those institutions receive federal aid. Title IX also makes schools responsible for taking steps to prevent sex-based harassment, including sexual harassment, and for responding quickly and effectively to harassment when it occurs.
What Are the New Changes to Title IX Investigation Procedures?
The new regulations provide a number of increased protections to students who have been accused of sexual misconduct or sexual harassment.
First, and perhaps most importantly, the guidelines require that a school apply a presumption of innocence. Previously, schools were permitted to start from a position of assuming that a complaint must be true. Under the new rules, the school must require some evidence in order to find an accused student responsible and impose sanctions.
Second, the regulations modify the recommended burden of proof which schools should apply in deciding whether or not the accused has committed a violation. Under the previous regulations, schools were encouraged to apply a “preponderance of the evidence standard.” Under a preponderance of the evidence standard, the school would find against the accused if the fact-finder found that it was 51% or more likely that the accused committed a violation. The new guidelines allow schools to require “clear and convincing evidence,” which is a higher standard than 51%. This is the standard used in many family court proceedings such as child custody cases. It is, however, still a lesser burden than requiring proof beyond a reasonable doubt as is usually required in a criminal case. Schools may also continue to use the preponderance of the evidence standard. But if they do so, they must still apply that lower standard to accusations made against their own employees.
Third, the new rules require that the accused receive a live hearing in front of the decision maker. The previous regulations encouraged the use of the single investigator model. Under the single investigator model, a school that had received a complaint would then retain an investigator to resolve the complaint. This would often be an outside attorney or retired law enforcement officer who had been retained by the school specifically to resolve these issues. That investigator would review the complaint, speak with the complainant and the accused, interview potential witnesses, review any other evidence provided by the parties such as text messages or medical reports, and then make findings of fact as to whether or not the sexual harassment or assault had occurred. Depending on the school, the investigator may also recommend the punishment for an offense, but at some schools, a board of faculty members would decide on punishment without hearing from the accused student directly.
The new rules eliminate this procedure. No matter what standard of proof a school decides to apply, the accused student is now entitled to an in-person hearing in front of the person or people that will make the decisions as to guilt or innocence and the penalty in the case of a finding of guilt. This is a significant change as it ensures some level of due process. Instead of simply giving a statement to an investigator and being found guilty, the accused student may now present a defense to the people making the decisions.
Fourth, the rules also provide that the accused shall have the opportunity to cross-examine the complainant. This generally does not mean that the individual student gets to ask questions of the complainant himself or herself. Instead, the accused’s faculty counselor or attorney may ask the questions or submit the questions to the fact-finder for them to ask the questions. Further, the parties may appear remotely by video. Cross-examination allows the accused student the opportunity to challenge the complainant’s story and demonstrate potential credibility problems or motive to fabricate. This is an extremely important change because sexual assault cases often hinge on how credible the alleged victim is.
Fifth, colleges and universities will now only be responsible for investigating cases that occurred within their programs or their activities. For example, a school would not be liable for an alleged assault that occurred in an apartment that is not affiliated with the school.
Finally, schools may not impose any sanctions on an accused student until the case has been adjudicated. A school may still, however, impose temporary restraining orders prohibiting contact between the parties. A school may also remove a student from campus if there is a finding that the student is an immediate, dangerous risk to safety.
These regulations become effective on August 15, 2020. Accordingly, they will be in place by the time students return to campus for the fall semester. There is no doubt that there will be some growing pains with these regulations, and it is likely that there will be legal challenges to them as well. The regulations also do not necessarily prevent schools from continuing to enforce rules which are worse for the accused than those suggested by the guidelines. However, they remove much of the pressure on schools to enforce rules which give the accused no opportunity to defend themselves. Therefore, this is an important step in providing accused students with a fair opportunity to present a defense. Contrary to some negative reporting in the press, the guidelines do not suggest that schools should not take complaints seriously or believe the accused. They simply add some level of due process to the proceedings so that accused students have a chance to defend themselves and obtain a fair result.
How Can a Title IX Defense Attorney Help if You Are Accused of Sexual Misconduct on Campus?
The processes currently in place prior to the new regulations gave very little thought to the rights of the accused. However, many schools may begin to change their policies in order to implement the new guidelines, and each school’s disciplinary processes will likely be somewhat different. For that reason, anyone accused of sexual misconduct should not attempt to go it alone. Nor should they allow any kind of embarrassment they may feel to silence them.
Given the potential consequences, which can include expulsion from school without a refund and a permanent notation on the students transcript, someone accused of this sort of sexual misconduct must reach out to an attorney as quickly as possible. An attorney who has previously represented other students at one of these hearings can best guide the accused in how to defend themselves. The first days following an accusation are among the most important and if you have been informed you are under investigation, there are certain steps that must happen as quickly as possible. An experienced defense attorney may be able to help you with the following things:
Preparing to give a statement to the school’s Title IX Investigator
Reviewing and editing written submissions which may be required as part of the investigation
Conducting a thorough investigation into the allegations, including locating third-party witnesses and obtaining witness statements
Obtaining and preserving digital and social media evidence such as text messages, Facebook posts
Providing advice on how to avoid criminal charges while responding to the allegations
Helping you to understand the school’s procedures for the investigation and potential appeals and making sure that you understand all of your rights
Presenting a defense at a hearing and conducting cross-examination as schools begin to provide enhanced protections
Facing Criminal Charges or a Campus Investigation? We Can Help.
Goldstein Mehta LLC Criminal Defense Lawyers
If you are facing criminal charges or are under investigation by the police or campus authorities, we can help. We have successfully defended thousands of clients against criminal charges in courts throughout Pennsylvania and New Jersey. We have successfully obtained full acquittals in cases involving charges such as Conspiracy, Aggravated Assault, Rape, and Murder. We also have extensive experience defending clients against allegations of sexual misconduct in Title IX investigations. Our award-winning Philadelphia criminal defense lawyers offer a free criminal defense strategy session to any potential client. Call 267-225-2545 to speak with an experienced and understanding defense attorney today.
I've been accused of sexual assault by my college. What is going to happen?
What is Title IX?
Title IX Defense Lawyer Demetra Mehta
Title IX is a federal civil rights law sighed by President Richard Nixon in 1972 as part of a larger Education bill. At its core Title IX prohibits discrimination on the basis of sex in educational institutions when those instructions receive federal aid.
No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance. 20 U.S.C. § 1681
This had an enormous effect in opening up higher education to woman in all fields of study as well as establishing a place for woman sport at any school that receives any federal money from the elementary to university level. Before the passage of Title IX, many schools had quotas for woman in the areas they were allowed to study, the places they were allowed to study, and the subjects they were allowed to study (including complete bans from “male” areas such as medicine). Even if a woman gained access to a restricted program she might not have been allowed to stay if she got married or became pregnant. A woman in medical school in 1960 would often have a curfew placed on her and a requirement that she live in a particular dorm and only be allowed into certain residencies.
How does Title IX relate to sexual assault allegations?
Title IX also makes schools responsible for taking steps to prevent sex-based harassment, including sexual harassment, and for responding quickly and effectively to harassment when it occurs. What this means has varied since the act’s inception, however. With increasing pressure stemming from recent sex-abuse scandals, schools have stepped up their response to sex allegations. The previous Presidential Administration decided to give more guidance and wrote what has become to be known as the “Dear Colleague” letter which spelled out a school’s obligations once a claim of sexual violence has been made:
Once a school knows or reasonably should know of possible sexual violence, it must take immediate and appropriate action to investigate or otherwise determine what occurred.
If sexual violence has occurred, a school must take prompt and effective steps to end the sexual violence, prevent its recurrence, and address its effects, whether or not the sexual violence is the subject of a criminal investigation.
A school must take steps to protect the complainant as necessary, including interim steps taken prior to the final outcome of the investigation such as issuing a no contact order.
A school must provide a grievance procedure for students to file complaints of sex discrimination, including complaints of sexual violence and sexual assault.
These procedures must include an equal opportunity for both parties to present witnesses and other evidence and the same appeal rights.
A school’s grievance procedures must use the preponderance of the evidence standard to resolve complaints of sex discrimination.
A school must notify both parties of the outcome of the complaint.
Due to the Obama administrations guidelines, many schools now provide very few protections for the accused. Once an accusation has been made, a school must investigate the claim. However, because the standard is currently one of “a preponderance of the evidence,” a school will sustain a claim (find the student responsible) if it is decided that “there is greater than fifty percent chance that the proposition is true.” Although schools will permit the accused to have an attorney present during the various stages of the investigation, many schools do not provide any sort of trial, hearing, or opportunity to cross-examine the accuser. Instead, an investigator retained by the school will often interview the parties, review any evidence, speak with some potential witnesses, and then make a finding as to whether a sexual assault has occurred. The investigator’s decision is usually not subject to challenge - meaning if the investigator has found that the accused is responsible, the school will not offer any type of appeal of the investigator’s factual findings.
The investigator’s decision may have permanent consequences for the accused. With very little due process, someone accused of sexual harassment or sexual violence could lose the right to their transcripts and the right to graduate. Even if the accused is permitted to graduate, the accused’s transcripts may contain an indicating that the accused was found responsible for an allegation of sexual assault.
Even worse, academic institutions use the natural inclination we all have to clear our names to endanger the accused with respect to potential criminal charges. Because a student who declines to make a statement or participate in this process will typically be found responsible, a student must choose between waiving his or her Fifth Amendment right to remain silent and losing the education for which the student has paid in time and money. Thus, the students accused of sexual misconduct will often make statements to their school in an effort to “clear their name,” but these statements are fair game to any police agency that may wish to investigate the charges levied by the student’s accuser.
One would think, given the many horrific miscarriages of justice in similar situations, schools would know to be careful, but the schools and the Department of Education appear to have learned nothing:
· Rolling Stone to Pay $1.65 Million to Fraternity Over Discredited Rape Story
· College student gets 1 year in prison for false rape accusation
· 60 Minutes investigates: The Duke rape case
· Exonerated of rape, Brian Banks now realizing NFL dream – in different capacity
How can a Title IX defense attorney help?
The current process gives very little thought to the rights of the accused. For that reason, anyone accused of sexual misconduct should not attempt to go it alone. Nor should they allow any kind of embarrassment they may feel to silence them. Someone accused in this sort of sexual misconduct must reach out to an attorney as quickly as possible. An attorney who has previously represented other defendants at one of these hearings can best guide the accused in how to defend themselves. The first days following an accusation are among the most important and if you have been informed you are under investigation, there are certain steps that must happen as quickly as possible. An experienced defense attorney may be able to help you with the following things:
Preparing to give a statement to the school’s Title IX Investigator
Reviewing and editing written submissions which may be required as part of the investigation
Conducting a thorough investigation into the allegations, including locating third-party witnesses and obtaining witness statements
Obtaining and preserving digital and social media evidence such as text messages, Facebook posts
Providing advice on how to avoid criminal charges while responding to the allegations
Helping you to understand the school’s procedures for the investigation and potential appeals and making sure that you understand all of your rights
Facing criminal charges or under investigation?
Goldstein Mehta LLC Criminal Defense Attorneys
If you are facing criminal charges or under investigation by the police or campus authorities, we can help. We have successfully defended thousands of clients against criminal charges in courts throughout Pennsylvania and New Jersey. We also have extensive experience defending clients against allegations of sexual misconduct in Title IX investigations. We have successfully obtained full acquittals and dismissals in cases involving charges such as Conspiracy, Aggravated Assault, Rape, and Attempted Murder. Our award-winning Philadelphia criminal defense lawyers offer a free criminal defense strategy session to any potential client. Call 267-225-2545 to speak with an experienced and understanding defense attorney today.
We can help with Title IX investigations at the following universities and more:
Bryn Mawr College
Cabrini University
Chestnut Hill College
Drexel University
Eastern University,
Holy Family University
La Salle University
Pierce College
Philadelphia College of Osteopathic Medicine (PCOM)
Rosemont College, St. Joseph's University
Temple University
Thomas Jefferson University
University Of Pennsylvania
University Of The Arts
University Of The Sciences
Villanova University
West Chester University
Widener University
