Title IX hearings can be scary things for any student unfamiliar with them.
From knowing how the hearing will go to knowing what to do at a hearing,
a person's fate is in limbo.
What is Title IX?
"Title IX" is the section of the 1972 Education Amendments to
federal civil rights law, which prohibits discrimination based on gender
in educational programs or activities that receive federal funding. Under
the law, sexual assault and sexual harassment can qualify as "discrimination"
under the statute. In other words, it's a well-intended federal law
that schools are required to follow in order to make sure that people
are not discriminated against. For example, one student alleges that another
student sexually assaulted him or her on a university campus. The university
must now make the alleged perpetrator subject to a Title IX investigation
and inevitable hearing.
What is the problem with Title IX?
Schools, particularly universities, receive direct federal funding, and,
unfortunately, there is little direction given to schools on how Title
IX is to be applied. Generally, guidance is available, but the procedure
at a hearing, how a hearing is conducted, and so on, can change between
colleges and universities. This means that students who are subject of
a Title IX action face serious deprivations of their fundamental procedural
constitutional rights. For example, a person can have an attorney present,
but that attorney cannot ask questions. To make matters worse, there are
requirements under Title IX to make hearings more fair to the accused,
such as that he or she must be allowed to see the allegations against
him or her, but there is little to no mechanism for recourse (other than
a federal lawsuit) when schools violate Title IX—and they violate
it all the time. In addition, it is easy for someone accused to be found
in violation because the standard (or burden of proof) by which an allegation
must be proven is only by a preponderance of the evidence—the lowest
civil standard in the State of Illinois. Furthermore, our colleges and
universities offer no protection to the accused. Students who face or
have had a Title IX hearing often face serious personal consequences from
being outcast to physical attack simply because they were accused. This
is true regardless of the outcome and, if found in violation, regardless
of punishment. Good luck to any student who was once falsely accused of
something who now seeks for the university to take action against his
or her attackers. Finally, colleges and universities impose no punishment
when accusations are proven to be false. When an accuser makes an allegation,
seeks to have another student expelled, and is proven to be a liar, higher
education does not, in turn, do the correct thing, expelling that lying
accuser. Instead, they leave the once-accused, now maligned, student to
fend for himself or herself.
What can happen after a Title IX hearing?
After a hearing held under Title IX, the allegations could be unfounded,
akin to a not guilty verdict, and there is no punishment at the university
level. (Punishment at a personal level, threats or harassment from fellow
students, online or in-person intimidation, and so on is another matter
altogether that forces even those whose allegations were groundless to
drop out or enroll elsewhere.) Frequently, if the allegations after a
Title IX hearing are founded what will happen is some university discipline,
whether it be probation, suspension, or expulsion.
Why do people need help with their Title IX hearing?
There are several reasons why people who are accused of something need
help. First, as was discussed above, people are frequently denied their
fundamental rights at hearings, and knowing how to navigate an unfair
system can be impossible if you are unfamiliar with that system. Secondly,
our political and cultural climate too often weighs heavily in the minds
of those deciding what will happen at a Title IX hearing. There is no
presumption of innocence, such as there would be in a criminal case, at
Title IX hearings, and, if anything, thanks to our current political and
cultural climate on college and university campuses, there is a presumption
of guilt. Thirdly, most hearings will be lost without a strategy, and
planning to simply deny any allegations is not a strategy. It will only
turn a case into a he said-she said, and, thanks to what was discussed
above, this will likely result in some university discipline. Finally,
anyone accused and facing a Title IX hearing has to protect his or her
freedom, because many times allegations will be made to police first.
This means what is said, what is produced, and what the outcome of a hearing
is can all affect whether a person is or is not charged, much less whether
a charge is or is not beatable at trial.
Copyright © 2017 by Brendan Bukalski
The information provided in this column is general in nature, and should
not be relied upon as legal advice or interpreted as creating an attorney-client
relationship. As a general rule, all specific legal problems should be
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