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Understanding the Title IX Investigative Process from Start to Finish

Title IX attorney-advisors have experienced first-hand how procedures and processes involving complaints or grievances can vary to some extent between schools. However, whether a SUNY college or private university in or outside New York State, there are specific requirements that every educational institution must comply with when establishing their reporting and investigative process for sexual harassment, sexual assault and other misconduct that violates the law. This is done to assure a certain degree of consistency, and to protect the rights of both the accused and the accuser. With the changes of August 2020 and the impacts to due process, the right to cross-examine witnesses and parties, as well as the disciplinary exposure that can result in the suspension or expulsion of a respondent, fully grasping Title IX procedures securing the right advisor is critical to protecting yourself now and in the future.

Training of Administrators and Objective Assessment

The school’s process and system for evaluating complaints must contain an element of objective assessment of the evidence and must not be biased in any way by favoring a complainant’s version of events just because they are the complainant, for example. The Title IX personnel and administrators must also be free from bias and any conflicts of interest regarding the parties in a particular complaint. Generally, these administrators must be trained in the definitions of sexual harassment, how to properly conduct investigations and abide by the grievance process requirements, and relevant technology.

Presumption of “Innocence” and Standards of Proof

Embedded in every school procedure must be a presumption that the accused person is not responsible for the alleged actions, until proven otherwise, and a reasonably prompt time frame for the entire grievance process to go through to a conclusion, including appeals. While each K1-12, college or university can establish its own standard of proof for these kinds of sexual harassment allegations, it must clearly state whether it chose either the preponderance of evidence standard (“more likely than not”) or the clear and convincing evidence standard (a higher standard that must leave a fact-finder firmly convinced that the allegations are true).

The Formal Complaint and Commencing the Investigation

The first phase of any Title IX process is the investigation. The statute requires that every school investigate allegations made in any formal complaint. The school must also send written notice to both the accuser and the “defendant” of the allegations after receipt of this formal complaint. In other words, the administration may not simply dismiss an allegation out of hand nor pass off its responsibility to the complainant or some other person.

Submission of Evidence in Furtherance of the Investigation

The school must also allow the parties submit their own evidence, including expert witnesses or reports, and the school cannot restrict either the complainant or respondent’s ability to gather evidence, such as through so called “gag orders.”

Right to an Advisor, an Attorney, and to Submit and Evidence

During the investigation, colleges must allow either party to have an advisor assist them, which can be an attorney, but does not have to be a lawyer. The University must also provide the advisors, respondents, and complainants with the evidence it gathered and allow for at least ten (10) days for the parties to examine and respond to that evidence. Additionally, administrators must provide advisors and the parties with a report summarizing the evidence.

Dismissal of Formal Complaints

Any allegations that, even if true, do not comport with the definition of sexual harassment, must be dismissed, at least for these specific proceedings. The school may also dismiss a complaint if the accuser indicates in writing that they want to withdraw the complaint, if the accused person is no longer at the school, or if the school is unable to obtain enough evidence. It’s important to note that, under Title IX, schools cannot access any party’s medical records without that person’s written consent, even as part of this kind of serious investigation.

Hearings and “Trial”

Through their advisors, both parties can present questions and cross-examine their adversaries and witnesses at a Title IX hearing.

Imposing Sanctions, Punishment and Penalties

First, and perhaps most obviously, Title IX requires that a school provide remedies when a respondent is found responsible for sexual harassment. Equally relevant, the college must treat the accused fairly and not impose any punishments or sanctions unless there is an indication of responsibility. Simply, educational institutions must remain compliant with the various procedural rules set forth by statute.

Next, while punishments and remedies can impose a burden on an accused person who is “guilty” or responsible – including probation, no-contact orders, suspension, or expulsion, those sanctions must be aimed at allowing the victim-complainant to continue to have equal access to the education the school provides as well as any support structures to facilitate this objective.

Right to Appeal

Although the basis of an appeal is not merely dissatisfaction with the outcome, both parties have an equal right to appeal. Although there is a short list of appellate grounds, when newly discovered evidence or a procedural flaw is a satisfactory basis even if unsuccessful.

Your Case, Your Education, Your Future

This first phase of a Title IX proceeding is often where an allegation is either firmly established or falls apart, even before the formal hearing. There is no replacement for experienced, knowledgeable, and expert advocacy during this critical stage just as there is no going back if you are expelled from school or your pleas as a victim go unheard. Crotty Saland PC’s college disciplinary attorneys, former Manhattan prosecutors, and criminal defense lawyers are ready to stand by your side and ensure that your rights are protected, your university or college adheres to their responsibility to you as a complainant or respondent, and your time at your school is one that fulfills your educational expectations while putting you in the best place to succeed now and in the future.

Call our student attorneys, disciplinary hearing lawyers and former Manhattan prosecutors at (212) 312-7129 or contact us online today.

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