What is a Title IX investigation?

A Title IX investigation occurs when it is believed that someone’s rights have been violated under the federal Title IX guidelines which protect against any kind of sex discrimination which also includes sexual assault. Those rights are afforded to anyone on a school campus that accepts any kind of federal funding. When a complaint is filed with the school, the accused is notified and an investigation soon after launches.

The investigation is conducted by a trained Title IX investigator who will conduct interviews of the accuser and accused, any witnesses they feel important to question, and gather as well as study any relevant evidence. That evidence may include interviews with any number of individuals, as well as physical evidence such as text messages, emails, photos, social media posts and campus security tapes. When that investigation process is complete, a report is then presented to the school’s Title IX coordinator and in most cases, a hearing is conducted. It is very important to have an experienced Title IX attorney advising you during this process.

Who is covered by Title IX?

Anyone who participates in any educational programs or activities that receive federal funding are all protected under Title IX. That includes students as well as staff and faculty at colleges and universities as well as local school districts and charter schools. If that institution receives any type of federal funding, Title IX applies and can be enforced. Areas covered include admission of students, athletics, employment and any form of sexual harassment or bullying on a campus. In short, any activity on campus is generally covered under Title IX.

How long does the Title IX process take?

First, it is important to point out that there is no time limit on a person filing a Title IX complaint. While it makes perfect sense for someone to file a complaint immediately after an alleged incident, that is not always the case. That being said, there is no longer an official time frame for which a Title IX investigation or process be completed. In the past, The Department of Education stated that the Title IX process be completed within 60 days but that has since been lifted citing that some cases can take longer due to the complexity of the investigation.

As with any type of investigation, the more complex, the longer it may take. Tracking down potential witnesses and setting up the time to speak with them can take time. The same goes for assembling any other physical evidence which could include social media posts, text messages, photos and video and access to campus security evidence. All this can take time. Not to mention, that investigator could be working several cases. While you may not be able to control the timeframe of a Title IX investigation, you do have the right to a fair and ethical investigation. And it is important to be prepared.

What does preponderance of evidence mean?

In short, preponderance of evidence means that at least 51 percent of the evidence presented must weigh one way or the other to determine an outcome. It is what they call in a court of law, burden of proof. The preponderance of evidence used to be the only standard by which a Title IX case was proved but now the Department of Education has issued new guidelines which allows schools to also use the method of “clear and convincing evidence” to assess whether a Title IX violation has occurred. It is the school’s decision which standard of proof it will follow. However, we have found that most schools still use the preponderance of evidence standard when hearing Title IX cases. In 2011, the Department of Education issued what was known as the “Dear Colleague” letter. It stated that preponderance of evidence was the only way a college or university could resolve an alleged Title IX violation.  As a new administration took over in 2017, the “Dear Colleague” letter was rescinded, and the new standard put in place. Once again, this points out how important it is to have an experienced Title IX advisor with you during this process.

What are interim measures in Title IX?

In most cases, when a Title IX complaint is filed and an official notice has been sent to the accused, there will be interim measures that accompany that notice. Interim measures are, in essence, protective actions that must be taken to ensure all parties, but most importantly, the accuser, feel safe during the Title IX investigation process. The most common form of protective measures include no contact orders, meaning you are to refrain from any direct contact with the accuser and in some cases, other witnesses. There may be a demand for you to change housing such as another on-campus building or leaving campus housing altogether.

Other interim measures might be restricted access to a host of campus activities including attending the same classes or lectures as the accuser, campus events such as sporting events and in other cases, you may be asked to leave the campus entirely until the investigation has completed.

What is retaliation in Title IX?

Retaliation in Title IX cases is not unlike retaliation in other cases or circumstances. A person who files a Title IX accusation cannot be intimidated in any way because they have exercised their rights under Title IX. Retaliation can include discrimination in school activities, any form of intimidation, derogatory social media posts, discouraging further actions, class grades or any other unfair treatment during protected activities. For example, if a student files a Title IX accusation against a faculty member, and that teacher then gives that student a failing grade, that can be interpreted as retaliation. However, retaliation is widely interpreted and many things that might not otherwise seem like retaliation could be interpreted by the school as such.  Some schools have found that the accused’s hiring a private investigator to speak with the accuser amounted to retaliation. So, it is very important to be careful and discuss all actions with your attorney/advisor to ensure no one makes a claim for retaliation.

If an individual feels they have been the subject of retaliation, they can file an additional claim with the Title IX Coordinator’s office.

Why can’t my lawyer speak for me during a Title IX case?

Under Title IX, you are afforded the right to have an advisor of your choice, who may be an experienced Title IX attorney, but does not have to be. However, under Title IX you do not have the right to have an attorney represent you, as you might in a criminal proceeding.  The school’s Title IX policy will dictate what role your attorney/advisor may play.  In most colleges and universities, the Title IX policy will only allow your lawyer/advisor to advise and prepare you for the process, investigation and hearing. Both the accused and the accuser have the right to an advisor under Title IX but the role is to offer support and guidance, not act as your direct representative.

During a Title IX investigation, your advisor may be present and you will have the opportunity to take time to consult privately with your advisor but that advisor cannot speak on your behalf, or in a hearing, question witnesses the way they would in a criminal case. A Title IX lawyer can however, conduct their own investigation, assemble evidence, and assist you in the preparation of written and oral statements. In the end, though, it is up to you to speak for yourself and defend the Title IX accusation.

What is the role of a Title IX advisor?

When you retain an experienced Title IX advisor, you need to be aware of their role during the process. While you may assume a Title IX lawyer will take on the role of a defense attorney and conduct all the activities associated with that role such as speaking on your behalf in a courtroom, you need to understand that the functions are very different in a Title IX case.

A Title IX advisor or attorney will read and help you to understand your college or university’s specific Title IX Policy. Your Title IX advisor will also make sure you understand everything in the complaint and notice such as interim measures imposed by the institution and advise you on how to proceed during each step of the Title IX process.

The attorney will help you to assemble all the facts, evidence and witnesses associated with the Title IX complaint. Essentially, they conduct their own investigation. They will assist you in preparing any written response required by the college’s Title IX policy. The attorney will then prepare you for any investigation including an interview with college’s Title IX investigator.

Your advisor will be present through the entire process including any hearing. But it is very important to note that they cannot speak on your behalf during the Title IX hearing, including questioning witnesses or your behalf.

Your Title IX attorney will also help you prepare any appeal and advise you about that process.

Do Title IX cases end up in court?

Title IX cases are not court cases. While certain violations, such as sexual assault, could be charged as crimes, Title IX is a school disciplinary process.  It is investigated and processed through the college or university by a Title IX coordinator in accordance with the school’s specific Title IX policy. In some cases, you may also be under investigation by local law enforcement, which could result in criminal charges. Although that investigation may be related to the same incident, it is different than Title IX.  Due to this potential overlap and consequences that can result, it is very important to consult an attorney who has experience with both the criminal justice system and Title IX matters.

Also, there are many cases in which an accused may feel that they were not treated fairly or that the school did not comply with Title IX or the college’s specific Title IX policy.  In these cases, the accused may file a lawsuit against the school and members of the staff who participated in the Title IX process, such as the Title IX coordinator, investigator, etc.

Is the Title IX investigation and process confidential?

The short answer is not always. Disclosure of most educational information is governed by the Family Educational Rights and Privacy Act (“FERPA”). FERPA generally forbids disclosure of information from a student’s “education record” without the consent of the student (or the student’s parent). Thus, confidentiality under FERPA will apply to Title IX matters because written information about the complaint, investigation, and outcome is part of the accused student’s education record. Further, the 2001 Title IX Guidance under Title IX states in part that, “A school should be aware of the confidentiality concerns of an accused employee or student. Publicized accusations of sexual harassment, if ultimately found to be false, may nevertheless irreparably damage the reputation of the accused.” However, there are exceptions.

One exception is that the accuser will be allowed to know the outcome of the case, including whether the accused has been found responsible for the Title IX allegations and if so, what punishment the accused received as a result.

Another exception is where the accuser is a minor (under the age of 18).  Massachusetts, as well as many other states, have laws specifically aimed at the protection of minors from abuse and neglect.  Sexual assault is included this definition.  Schools, police, teachers and certain medical personnel are required by law to report any such allegations to the Department of Children and Families who will then conduct its own investigation which is separate and distinct from any school disciplinary process.

A third common exception is where the alleged conduct potentially implicates the safety of other students.  Some examples of this may include:

  • Where the offense is serious in nature, such as a violent sexual assault
  • Circumstances suggest there is risk of the accused committing additional acts of violence (e.g., other complaints about same accused, history or threat of violence)
  • Where there is a pattern to the alleged conduct, such as use of drugs or alcohol to intentionally incapacitate a victim, dangerous locations, etc.
  • Where a weapon is used to commit the alleged assault
What if my accuser does not want to press Title IX charges against me?

In many cases an accuser may not be the one who reports the violation of Title IX to the school.  Sometimes it is a friend or roommate who reports it on their behalf, but the accuser does not want to come forward or press the charges. Other times an accuser makes the report but likewise does not want their name revealed.  In these cases, the college or university still has an obligation to investigate the alleged violations of Title IX regardless of whether the alleged victim wants it to proceed.

At the outset of the case, if the accuser asks the college or university for confidentiality, the school will give that request fair consideration. Understandably, this may limit the school’s ability to prosecute the alleged violation.  In many cases, the accuser and the accused are the only witnesses to the events.  However, even in circumstances where an accused demands confidentiality, the school has a duty to take reasonable steps to investigate the allegations and try to make a case against the accused.  They may attempt to do so by speaking with other potential witnesses, reviewing security video, reviewing social media, etc.

Further, in cases where the facts are particularly serious and could implicate safety concerns for other students, the school generally will not honor an accuser’s request to remain confidential. Such circumstances may include:

  • Where the accuser is a minor and the conduct at issue (i.e. sexual assault and like conduct) must be mandatorily reported in accordance with State Law
  • Where the offense is serious in nature, such as a violent sexual assault
  • Circumstances suggest there is risk of the accused committing additional acts of violence (e.g., other complaints about same accused, history or threat of violence)
  • Where there is a pattern to the alleged conduct, such as use of drugs or alcohol to intentionally incapacitate a victim, dangerous locations, etc.
  • Where a weapon is used to commit the alleged assault
What documents or other evidence will my attorney want me to save?

As with any type of investigation, preserving evidence is absolutely critical in mounting a proper defense. Your Title IX attorney will want you to save anything that relates to the accusation or shows that you may have been wrongly accused.

Typical forms of evidence include phone records, text messages, photos and videos, including those from other witnesses, voice mails, social media posts and interactions as well as anything that might have a time stamp on it such as a parking voucher.

A Title IX investigator will be assembling and studying evidence they have gathered so it is critical to make sure in mounting your defense that you have as much evidence as you can come up with and protect.

Can I be investigated for an alleged incident that happened a long time ago?

Generally, there is no time limit for someone to file a Title IX complaint with a college or university. As we have seen in recent times, those who feel they have been a victim of sexual assault or sexual harassment have delayed reporting for years. The same can occur in the case of Title IX complaints. The accused may have little or no recollection of an alleged incident after much time has passed so it is vital to have an experienced attorney in Title IX cases by your side during the entire process.

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