Client Story: Title IX – A Way to Move Forward

Steve and Kayla were students at two different colleges in the Boston area. They met on Tinder and chatted for a while. They agreed to meet up and Steve drove to Kayla’s dorm. They hung out watching a movie for a while. Things turned physical; but when Kayla seemed to get upset during their intimacy, Steve asked if she was ok. She wasn’t and they stopped their activities. They parted ways and did not remain in touch.

Two years later, with a degree in Criminal Justice, Steve got a job as a public safety officer at a Boston area college. Coincidentally, it was the same college where Kayla was still an undergraduate student. About six months into his new job, Steve and Kayla saw one another on campus. They did not speak or acknowledge one another. The next day, Kayla went to the campus police to report that she had been raped two years earlier by a man who was now working on campus. She identified Steve as her attacker. Her statement was taken by officers. The officers told Kayla her options, including filing a police report with the Boston Police. She declined to file criminal charges but wanted to pursue options available to her at the college.

The next day Steve was called to his supervisor’s office and informed of the accusation that had been made against him. He was accused of a Title IX violation. This is a very grey area of Title IX in that Steve was not a student at the college and the event in question had taken place two years before he was employed there. Nevertheless, Steve stood accused of a Title IX violation. Steve retained Contant Law’s services to help him through the Title IX process.

Kayla and Steve’s stories largely agreed with one another: they met on Tinder; they met up one evening; they became intimate; the intercourse was consensual; at some point Kayla wanted to stop; and Steve did stop.  The finer details are where their stories diverge. How quickly and clearly Kayla voiced her change of mind and desire to stop was the biggest difference.  While engaging in intercourse, Kayla began to cry. Steve asked if she wanted to stop.  Kayla’s version was that she said, “just get it over with.”  Steve remembers her saying “no, keep going.” Both agree that Steve stopped the encounter shortly after a statement of this kind.

The college investigated. Most Title IX cases are decided based on a preponderance of evidence – which 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 Title IX process is exclusively run by the individual college. Those accused of a Title IX violation may have an advisor. That advisor can be an attorney, but the attorney cannot speak on their behalf. We were acting as Steve’s advisor, helping him understand what he would need to do and helping him to prepare his written and oral defense – which he would have to deliver himself.

The Title IX investigator concluded that Steve was responsible for violating Title IX. This is where Title IX differs in many respects with other areas of the law.  The accused has limited rights.  This was a private college, so Steve did not have any right to Due Process.  He had no right for his case to be heard by a judge, jury or even an impartial panel of students or faculty.  His case was decided by the College’s Title IX investigator under what is known as the “single investigator model.”

Our focus was to show the problems with the story of the accused and demonstrate why there was no violation.  This was not a forced or coerced encounter.  This was not a rape in any sense. In the eyes of the investigator Steve should have stopped when he noticed her crying, despite her words to contrary.  Essentially, Steve did not stop quickly enough for the investigator’s liking.

Unfortunately, when a finding like this is made, the accused has limited rights to appeal the decision.  Most are left with long, tedious and expensive process of filing a lawsuit in Federal or State courts against the college to illustrate the unfairness of the Title IX process.  This is something Steve did not want to do, nor did he have the resources to do so.

With this in mind and due to the earlier work we had done to illustrate that this could not have been a serious violation, we were able to negotiate a reasonably good result.

• Steve was required to leave his job at the college; however, the record of this Title IX investigation and finding was sealed so that he could continue to pursue his career elsewhere
• As a Public Safety Officer, Steve had had received good performance reviews from his supervisors. He was given a good reference to use as he pursued future employment.

While we did not agree with the investigator’s decision, we were able to help Steve preserve his professional reputation and move forward.