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So You’ve Been Accused of Sexual Assault or Misconduct on Campus. Here’s What You Need to Know

Colleges, universities, and graduate schools have had a reputation for not taking students’ complaints of sexual misconduct seriously. School disciplinary systems that were set up to deal with cheating, plagiarism, and more “academic” misconduct are ill equipped to deal with the complexities of interpersonal relationships that often come into play when there is conflict regarding sex. Undoubtedly some schools have swept accusations of rape or harassment under the rug. But in about 2001, the pendulum started to swing in the opposite direction, and today schools are under intense pressure from the federal government to investigate, convict, and discipline students as quickly as possible for any perceived incident of sexual misconduct, or else risk the “death penalty” of losing all federal funding. Because schools are no better equipped to deal with adjudicating sexual assault complaints now than they were 10 years ago, this well-intentioned reversal of attitudes frequently results in an unfair process where innocent students can be quickly railroaded to a preordained outcome in which they are branded rapists and expelled without any of the protections they would receive in the criminal justice system.

Under Title IX of the Education Amendments Act of 1972, schools receiving federal funds (virtually all schools) must guarantee students an equal opportunity to receive an education regardless of gender. This provision has been interpreted to require schools to prevent and remedy sexual harassment and sexual violence that could interfere with the learning environment for students based on their gender. The Department of Education’s regulations say only that schools must have a “prompt and equitable” procedure for resolving complaints of sexual harassment or violence. But in informal “guidance,” issued without any opportunity for public comment, DOE has spelled out its view of what this process should entail. Most universities have readily adopted these “suggestions” because, if DOE investigates a school and does not like what it sees, it has the right to pull all federal funding from the school – research grants, financial aid, work study funds, and countless other types of federal money. DOE has never done this; no school has defied DOE enough for it to take this drastic step. But just the threat is a powerful incentive for schools to adopt DOE’s agenda.

What, in DOE’s view, should this process look like? When someone (the complainant), who may or may not be another student, accuses a student (the respondent) of sexual misconduct, the school must conduct an “adequate, reliable, and impartial investigation of complaints,” but should take no longer than 60 days. If there is a criminal investigation into the allegations, the school should not wait for the police, prosecutors, and courts to reach a decision on the matter. Both the complainant and the respondent have the opportunity to present evidence, but schools are strongly discouraged from permitting cross-examination, especially of the complainant. There is no requirement that the respondent receive any kind of hearing, nor does the respondent necessarily have any right to appeal. There is no right to an attorney – indeed, in most schools attorneys are expressly forbidden, so that even if the respondent gets a lawyer, the school may prevent the lawyer from participating at all. If a hearing is allowed, based on the fiction that disciplinary proceedings are an extension of the “educational” process, schools have almost uniformly insisted that the accused student conduct his or her defense alone, aided only by an “advisor,” who is not allowed to speak on the accused’s behalf. An allegation must be proven only by a preponderance of the evidence (i.e., it is at least 50.1% likely that the respondent committed the violation), even if the school has a higher standard of proof, such as “clear and convincing evidence,” for other disciplinary violations.

Who makes the decisions in this process? Decisions of guilt or innocence are often made by one or more administrators, faculty, staff, and/or other students, who may have little or no training or relevant background to make an informed assessment of the evidence. More recently, an alternative system has come into vogue, where power is concentrated in one investigator (frequently a Title IX specialist under pressure to avoid action from DOE) who can reach a conclusion without sharing more than a general summary of the evidence with the complainant and the respondent. At some schools, panelists who determine guilt or innocence may not even see all of the evidence themselves. These kinds of opaque and haphazard processes do not give either party much assurance of a fair result.

The school is required to have a Title IX coordinator, whose job is to oversee all investigations of sexual assault or harassment and address any problems with the school’s response to such complaints. While one would hope that this post would be strictly independent and impartial, as a practical matter the Title IX coordinator is under enormous pressure to make sure that the school does not look as if it is being soft on sexual violence and therefore come under the scrutiny of DOE. DOE, and therefore the Title IX coordinators, have focused on ensuring a strong response to allegations of sexual misconduct and spent little effort on ensuring fairness to those who are accused. As a consequence, the Title IX coordinator has the clear incentive to put a heavy thumb on the scale against respondents, in order to reduce the risk of bad publicity or an investigation by DOE because of a dissatisfied complainant. The Title IX coordinator typically does not make disciplinary decisions directly, but his or her influence is felt in the end result.

In many situations involving allegations of sexual assault or rape, there are two parallel systems at play: the criminal justice system and the Title IX-influenced inquiry of campus administrators. Each school does things somewhat differently, and sometimes the policies on paper may not match what actually happens to an accused student. A comparison of the typical features of these two processes, based respectively on the United States Constitution and DOE’s guidance, is instructive:

Justice System

Disciplinary Process

You have the right to an attorney, even if you cannot afford one.

With at least one exception, you have no right to have an attorney participate, even if you hire one yourself. Indeed, you may be required to conduct any defense personally, with only whispered advice from a non-lawyer “advisor.”

You have the right to remain silent and
not to incriminate yourself. Police are
obligated to inform you of this right before questioning you.

You have no guaranteed right against self-incrimination. If, due to pending criminal charges, you remain silent, the school hears only the complainant’s version of events. If you tell your side of the story, your words can be used against you in court.

You have the right to confront and cross-examine your accuser and other witnesses against you.

Cross-examination of complainants is strongly discouraged, and in many cases the complainant will not even be
in the same room with the accused. There is no requirement that you be
allowed to cross-examine other witnesses; the decision-maker may never hear from you or the complainant in person. DOE
suggests that, if there is a hearing, schools may have both sides submit questions to
a hearing panel. If so, DOE
recommends that the panel ask only those questions it deems “appropriate and relevant.”

You have the right to due process of law and a
fair trial.

The process should be “prompt and equitable,” but the school has a large degree of discretion.You typically have no right to constitutional due process unless you are at a public state school. Courts typically require private schools only to follow their own established procedures, though some states may require a greater level of fairness or due process.

You have the right know the charges
evidence against you, and have the right to present a thorough defense.

The school may only give you a summary of the evidence against you and can limit your presentation of evidence.

Trained police officers investigate,
and professional prosecutors decide whether to bring a case. A judge or grand jury may also have to decide whether there is probable cause to issue

The school must immediately investigate every allegation of “possible sexual violence,” no matter how far-fetched or unbelievable, and possibly take “interim” measures against the respondent before determining whether any wrongdoing occurred. Untrained or poorly-trained students and/or faculty members may conduct part or all of the investigation.

A neutral judge and/or impartial jury decides the case.

Administrators or others beholden to
the university, which is in turn beholden to DOE, decide the case under strong pressure to find you responsible and expel you.

The government has to prove your guilt beyond a reasonable doubt, an extremely high standard.

The decision-maker determines whether it is “more likely than not” (just over 50% likely) that you are responsible for misconduct. According to DOE, any school giving greater protection to respondents by increasing the burden of proof is violating Title IX.

If you are found guilty, you have the right to appeal to higher courts also made up of neutral judges, raising legal errors or violations of constitutional rights.

You may not have any right to appeal. If there is a right to appeal, there might be very narrow grounds for appeal, which do not include improper consideration or exclusion of evidence. If you can appeal, the appeal may be decided by a dean or other administrator who knows that, if he or she overturns the decision, the complainant may sue the school under Title IX or file a complaint with DOE.

If you are found not guilty, the government cannot appeal.

If you are found not responsible, the
must be given the same right to appeal that you have.

Why does this matter? Advocates of the status quo, including DOE, argue that because the campus disciplinary process cannot result in jail time, the protections of the criminal justice system are unnecessary. In order to protect survivors, they say, it is more important to reach a quick resolution than to ensure fairness or be concerned with “one-sided due process.” But the school process has significant and life-changing consequences for individuals who are found responsible of misconduct. The process derails their education – even before a decision, they may be forced out of their dorm or off campus in a matter of hours. They may have to withdraw from classes and put academic plans on hold, then spend months in limbo while waiting for the process to resolve. A student who is suspended or expelled typically has that information branded on his or her permanent transcript. This type of scarlet letter will give other schools or prospective employers strong incentive to find reasons not to admit or hire the student. And although the school itself is typically barred by federal law from releasing or publicizing the results of its disciplinary process, there is an exception for discipline relating to violence and some sex offenses Increasingly, the accusing student may publicly brand the accused as a rapist, spreading the accusations as fact across the Internet. Once a student has been identified as a sex offender by this deeply flawed system, anyone who Googles him or her will see, at the top of the page, a news article proclaiming a finding of guilt – not by a jury, but by one, or maybe several, untrained, biased administrators.

If you have been accused of rape, sexual assault, or sexual harassment at a college, university, or other school, you should take the process very seriously. As early as possible in the process, you should consult an attorney familiar with academic sexual assault cases, who can represent you and guide you to protect your rights. Do not wait until the school has already developed a damaging and one-sided view of your case.

Attorneys at Zalkind Duncan & Bernstein LLP have represented students and faculty in academic discipline cases for decades. We have achieved positive outcomes for clients at numerous Ivy League and other top schools. As experienced criminal defense lawyers, we are also mindful of the interplay between the school process and the criminal justice system in situations where criminal charges have been or may be filed. While no one can guarantee results in a particular matter, we leave no stone unturned to make the strongest possible case on behalf of our clients, and we will go to court, if necessary, to protect our clients’ rights.

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