The Department of Education, Office of Civil Rights ultimately enforces Title IX and determines what must be included in the Title IX process. However, the process in which a Title IX accusation is handled and investigated varies from one institution to the next. All schools are required to have a Title IX policy specific to their institution.
While the time may vary from one institution to the next, the college or university is required to conduct the Title IX investigation in a timely manner and must reflect a good faith effort to conduct a fair and impartial investigation.
Below is an overview of the four primary steps in a Title IX investigation.
Step 1: Notification
You have the right to be notified promptly of any accusations of a Title IX violation. Many notices simply contain the name of the accuser, the basis for the complaint (i.e., “non-consensual sexual contact”), the relevant date or approximate time frame and location of the alleged incident.
It is very important not to wait. If you think there may be a Title IX complaint filed against you, contact us. If you hear a rumor or chatter that someone is making these allegations against you even before receiving a formal complaint, it is important to take action in order to protect yourself.
A complaint is filed
Filing of a complaint kicks off the notification process. Some type of complaint is filed with the school after an alleged Title IX violation. The complaint can come from the individual themselves, a friend, colleague, or parent. The complaint ultimately ends up with the Title IX coordinator and a notice is issued to the accused.
Level of detail in the notification varies
Keep in mind that the level of detail can vary depending on the institution. In a public college or university, you will generally receive more detail concerning the Title IX allegations than at a private institution.
In the first notice letter, at a minimum, you must be informed of the identity of the accuser, time and place of the alleged violation and the nature of the alleged violation. You will almost never receive the full story of what your accuser has alleged in this notice.
You will also be notified that an investigation has begun and usually, you will be supplied with the name of the investigator. You will be advised that an investigator will be contacting you and that you are required to cooperate with the Title IX investigation. In most cases you will be given a limited amount of time to prepare a written response to the allegations. However, in most cases, you will not be given the chance to see the accuser’s statement prior to writing your written response.
Interim Measures included in the Official Title IX Investigation Notification
Interim measures or demands are generally required under Title IX. The main purpose is to ensure that the accuser, witnesses and all other parties involved in the Title IX investigation continue to feel safe and secure until a final determination can be made. While interim measures can include informing the parties of available campus resources, such as counseling, advocacy groups, campus and local police resources, the primary focus is to restrict contact between the parties.
Common interim measures imposed on an accused student can include:
- Issuance of a “No Contact” order with certain parties or witnesses
- Change in housing, including the accused being ordered to different on-campus housing or off-campus housing
- Restricted access to activities and locations (i.e. cannot attend same class or events with certain parties)
- Removal from campus until investigation is complete (temporary suspension from all school activities)
- Protection for the accuser
These interim measures should be as least restrictive as possible to ensure the safety of those involved in the Title IX investigation. It is important to note, you must comply with interim measures.
We will work with you to make sure you understand those measures and ensure compliance that will have the least detrimental effect on your education and your case.
Taking Quick Action is Critical
While the actual timeline will vary depending on your school’s Title IX policy, you usually only have about five days to write a response to the allegations. It is important to note that the time periods for a response set out in the policy will rarely be amended or extended to accommodate you, your advisor or attorney’s schedule. It is critically important to take immediate action and is strongly recommended that you do not try to defend yourself in a Title IX investigation process.
Now is the time to secure a proven, experienced criminal defense attorney to be in your court. Contact Michael Contant at Contant Law immediately. Do not proceed in the process described below on your own. Because of the demands and nuances of the Title IX process, it is vital to contact Contant Law for advice and guidance. What you might consider a harmless move, could jeopardize your case and your future.
Being accused of a Title IX violation is upsetting, confusing and in some cases, comes as a complete surprise. The sooner you secure expertise to defend your rights, the better.
Step 2: Secure Contant Law as your Advisor and Start Planning your Defense
In our first meeting, we will have you describe in great detail what you remember happening and why this accusation has been filed against you. You will need to discuss every detail of the alleged incident, so you will need to come ready to answer many questions. This is your defense, so being prepared and organized is in your best interest. We will review your college or institution’s Title IX policy. We’ll walk you through the Title IX investigation process and help you interpret just what is required by your school to help you better understand key considerations in defending a Title IX accusation.
In this meeting, we will advise you concerning time sensitive matters and reiterate how you must adhere to the demands in the notification. We will also explain and advise you regarding any actions that could be perceived as retaliation.
Related to retaliation, we will advise you on what you can and cannot do on your own behalf. Actions such as contacting your accuser or witnesses when done by you may be construed by the college as retaliation and could subject you to further discipline.
From this point forward, our focus will be on preparing for the investigation and hearing. We will immediately begin our own investigation in order to find and preserve evidence that can be used on your behalf. It is our practice to conduct our own investigation, which may include a deep dive into the social media accounts of all parties involved, interviewing potential witnesses, obtaining relevant text messages, emails, photos, videos and visiting the scene of the incident, if appropriate. The sooner you gather and preserve any evidence, such as photos, text messages, emails, social media posts, names of witnesses, etc. the better.
We will assist you through every step in the process including helping you craft the appropriate written response and oral statements. As your attorney, we will help to investigate the allegations and seek to understand prejudicial evidence.
Planning Your Defense
You will most likely be involved in several meetings throughout the process to prepare for your defense. We will go through every detail of the alleged incident, starting with a determination of whether you were even at the location at the time the accuser claims. Sexual assault and sexual harassment cases require an almost uncomfortable level of detail to adequately defend so you will be asked to remember, as best you can, every aspect of an alleged incident.
We will continue to meet to gather as much information as possible to help you prepare for your defense. In certain cases, we may also have you submit to a polygraph, which can sometimes be used in a Title IX proceeding.
We will prepare you for both the investigation process as well as the hearing process. That includes both written and oral preparation.
Step 3: An Investigation is Conducted
Under Title IX, the investigation is required to be fair and equitable. Any rights or opportunities that a school makes available to one party during the investigation should be made available to the other party on equal terms.Once an accused is notified, an investigation will soon after commence by an investigator who is employed by or retained by the college or university.
Trauma informed investigation:
Title IX requires that an investigator be “trauma informed.” This requires investigators to be trained in the neurobiology of trauma and how it may affect the accuser’s actions during and after the alleged assault. Some of the so-called neurobiological responses to trauma alleged can include:
- Fight, flee or freeze (tonic immobility, collapsed immobility)
- Having a fragmented (non-linear or incomplete) memory of the incident
- Have a specific memory of certain details
- Victim makes no immediate report and resumes apparent functionality
- Victim reveals almost no emotion about the incident (i.e. “may not seem like a victim.”)
- Victim may be hostile or uncooperative
Many of the neurobiological responses which the investigator’s trauma informed training makes them identify as relating to a trauma, are also factors which are normally used to assess a witness’ credibility. Generally, the same responses are often used to detract from a witness’ credibility. However, the trauma informed investigator will use them as a means of corroborating the accuser’s version of the events.
For instance, the trauma informed investigator is trained to find that an alleged victim whose memory of the events is spotty; delayed several weeks to report the incident; shows no or little emotion in speaking about the incident; and is uncooperative likely suffered a trauma and that this somehow corroborates their story. What causes concern is that this same investigator may find that when the accused or another witness exhibits such traits, that he is being evasive, lying or simply not credible. In a nutshell, having a so-called trauma informed investigator flies in the face of the other mandates under Title IX, which is that the process is fair and equitable.
What the investigator does:
The investigator may obtain and study police records, social media posts, campus security reports, videos, text messages and emails. They will also want to speak with anyone that might be a witness. Of course, they will also speak with you and the accuser. It is important to note that just because you or the accuser suggest a witness to be interviewed, that investigator does not have to speak with that person and does not have to use their written statement as evidence. The investigator is given wide discretion on how the investigation is conducted. Some investigators will record interviews, while others prefer not to record anything. There is no strict policy as to how each investigation must be conducted, so long as it is fair and equitable to each party.
It is extremely important that you be thoroughly prepared for your interview with the investigator. The more prepared you are to defend yourself, the better. Attorney Contant and his team will advise you and help you to prepare every step of the way. Michael Contant and his team treat every case like a criminal investigation, even though you are not afforded all the rights given in a criminal proceeding. You must be prepared not only for any possible questions that may be asked, but the potential ramifications of the statements you make and in what ways they may be used against you in both the Title IX investigation and any possible criminal investigation.
This is your opportunity to state your case in a well thought out manner. Depending on the way in which the inquiry is conducted, investigators can accept either written statements, oral statements or both. This is why it is imperative that you work with your attorney to be as organized and ready as you possibly can. Michael Contant will be by your side every step of the way, but you will need to speak for yourself.
There is no fixed time limit for how long an investigation should take. The only requirement is that the school, college or university, conduct the Title IX investigation in a timely manner and must reflect a good faith effort to conduct a fair and impartial investigation.
The Title IX Investigation Report
Once the official investigation has been conducted, the investigator will draft a Title IX investigation report concerning the alleged violation. Just like the investigation process, the report is supposed to be fair, unbiased and come to a conclusion based on facts gathered, applied against the college’s policies and the standard of proof established under those policies.
In the past, the Department of Education has stated that a “preponderance of evidence” standard should be used in determining whether a Title IX violation has occurred which made defending a case challenging. However, in 2017 the Department of Education issued new guidance stating that either a “preponderance of evidence” or “clear and convincing evidence” standards can be used. It is up to the college or university to determine which standard it will use. However, most schools continue to use the “preponderance of evidence” standard. Most people understand this to mean that to be successful your side must prove more likely than not, that you are correct. Stated another way, you win if your position tips the scales even slightly in your favor. Stated mathematically, you win by a showing that 51% of the credible evidence supports your position.
Just as each institution varies when it comes to how a Title IX accusation is handled and processed, so is the reporting process.
The report should outline a number of details collected during the progression of the investigation. Of course, it will outline the accusations, but it should then go into more detail from a number of sources that lays out relevant evidence.
A Title IX investigation report can include any number and variations of evidence collected during the process. First, it should outline the accusations. From there, the report can contain everything from police reports, security recordings and building access logs, and other official documentation from local law enforcement and/or campus security.
Other evidence collected can be everything from electronic evidence such as text messages, mobile phone photos, social media captures, voice mails and any other electronic data available to the investigator.
A Title IX report should detail extensively the investigator’s notes, all interviews, both written and taped interviews, written statements from both parties and any other documents related to the accusation and the findings of the investigation. If you are an employee of an institution, portions of your personnel file may end up in the report.
The report should then summarize the evidence collected and the investigator’s finding concerning that evidence; everything from the credibility of witnesses, differing accounts of the alleged incident, and the viability of the accusation. The report may or may not come to a conclusion depending on the policies of that institution. However, most investigators will give a conclusion as to their findings and whether or not they believe a violation of the school’s Title IX has occurred.
Report Available for Review by Accused and Accuser
After the report is written, it should be made available to both the accuser and the accused. Depending on the policy of your school, you may be given a copy or you may have to review it in the Title IX Coordinator’s office. Generally, you should then have the ability to argue any inaccuracies of the report and argue for it to be amended. This is usually required to be done in writing and under a short time frame.
The final report is submitted to the Title IX coordinator or hearing panel.
Step 4: The Title IX Hearing
Title IX hearings can vary from one institution to the next. And it is important to understand these different systems of determining a Title IX violation. The hearing is a culmination of the investigation process and one of the last steps in determining whether a violation has occurred. The findings of the hearing will ultimately go to the Title IX Coordinator at your school. It is very important to identify what type of process is conducted at your school.
Single or Dual Investigator Model
The single or dual investigator models are when the investigator or two investigators conduct both the investigation and render their opinion as to whether a violation has occurred. The investigator(s) will issue a final recommendation to a hearing panel or to the Title IX Coordinator (depending on your school’s policy), who then makes the final determination. As you might imagine, the single or dual investigator model creates somewhat of a challenge as in many cases, there is no hearing in the usual sense. Typically, only one or two people are responsible for the majority of the process. You will find this model is used in many private schools. You always have a right to be heard but, in many cases, not by a hearing panel.
A Hearing Panel
At various educational institutions, the accused will be able to stand in front of a hearing panel. You see this type of hearing model at public schools, where some due process is required. It is important to point out that while your advisor can accompany you to the hearing, they cannot speak for you such as they do at a traditional court proceeding. Your attorney, in these settings, is an advisor and supporter. It will be up to you to mount your defense in front of the hearing panel. As your advisor, we will prepare you for this hearing and will help you develop questions for the accuser and other witnesses, as well as any argument to be made on your behalf.
The hearing panel is typically made up of staff, students and faculty as well as others who have a willingness to serve on such a panel. They should be unbiased in their decision making, consider all the facts and ask for follow up evidence when necessary.
This type of hearing still allows for limited due process. In some cases, certain evidence is not allowed and the traditional cross examination of witnesses does not usually occur. The accused may not address the accuser directly. The accused can however submit cross examination questions, which are then read by a member of the panel. However, the panel member is under no obligation to ask all the questions and they often will rephrase questions. This is one of the many ways in which the Title IX process is imbalanced. Your attorney will help you prepare your questions in writing to submit at the hearing. This will help to create a record of the hearing, which may be helpful if you need to appeal the panel’s finding or further action against the school is initiated through a lawsuit in Court. Once the hearing has taken place, a decision is made whether a violation has occurred and, in most cases, it is referred to the Title IX Coordinator for determination of punishment.
Title IX Investigation – Possible Punishments
If you are found to have violated the school’s Title IX sexual misconduct policy, you will receive some type of punishment. In most cases, this punishment is determined by your school’s Title IX Coordinator, who has wide discretion on what type of punishment to impose.
Typical punishments may include:
- Short- or long-term suspension
- Restrictions from participating in certain school events or functions
Punishment will vary depending on the specific circumstances of each case. For instance, a person found responsible for a violent sexual assault is likely to have a much greater punishment than someone who made a lewd comment. If you are found responsible, we will help to advocate for the least restrictive punishment possible under the circumstances. In some cases, the punishment can be negotiated so that it does not appear in your school record, which can be instrumental in getting admitted to another school in the future.
We’re here to answer your questions and help you throughout the process
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