Title IX Hearings, Cross Examination, Standard of Proof & More

Prior to August 14, 2020, schools at all levels had far more discretion when investigating Title IX violations involving sexual harassment, misconduct and student violence as well as the adjudication process that followed. In lieu of a decision making process that did not mandate a fact finding trial or disciplinary hearing, the presence of either or both complainant and respondent, or provide for an opportunity to cross-examine adversaries and witnesses, the law, in its current iteration, is quite different. Regardless of where you fall in terms of an opinion, colleges and universities, as well as primary schools, must now adhere to certain disciplinary and expulsion guidelines with greater emphasis on due process rights. With all these rules and changes, retaining a Title IX lawyer experienced as a prosecutor and criminal lawyer, as opposed to a mere advisor, is of the greatest import. Simply, the right counsel can mean the difference between holding your abuser accountable and providing you the protections you need as a complainant or, as a respondent, coming away unscathed and avoiding the stigma and decimation of a suspension or expulsion.

Colleges and Universities: Live Hearings & Cross Examination

Unlike K-12 schools, postsecondary institutions must allow for live Title IX hearings. During these proceedings and through their advisors, both the complainant and respondent must be permitted to ask any and all relevant questions of the other party and his or her witnesses. As noted above, although an advisor need not be a lawyer, a defense attorney or former Assistant District Attorney is an invaluable asset when posing questions, challenging the credibility of your adversary and cross-examining both respondents and complainants. While a fact-finder or decision maker who sits as a judge will determine whether the posed question is relevant before requiring an answer, because cross-examination is live and in real time, an advocate skilled in this area and is capable of analyzing information and formulating questions on his or her feet, as well as preparing for the same in advance, is essential.

Irrespective of the question or questions, should the cross-examined party refuse to respond, then none of that party’s statements are admissible for the purpose of making a responsibility finding. At the same time, however, silence or non-appearance alone cannot be used by an adjudicator to draw an adverse inference. Simply, this means that administrators or faculty members sitting as judges cannot merely assume that a refusal to respond is indicia or reflective of a lie, fraud, misrepresentation, or other falsehood.

Whether conducted remotely or in person, schools must preserve the record of the proceeding either by an audio or audio-visual recording. Certainly, it would be far easier to review, but the law does not mandate that recordings are transcribed. Keep in mind that if you cannot afford an advisor, colleges and universities must provide you with one, although not necessarily legal counsel with trial-type experience necessary for these proceedings. In other words, a school appointed advisor may be quite capable, but proceed with caution.

K-12 Schools: Hearings Not Required but Questioning Allowed

Unlike procedures mandated at institutions of higher education, elementary, middle and high school hearings need not be live nor occur at all. Despite this, before a finding is rendered both the complainant and respondent must be allowed to submit written and relevant questions of the other party and his or her witnesses. Further, upon answering these questions, adjudicators must then share the answers with the requesting party who may then follow-up in a more limited capacity should he or she wish to do so.

Rape Shield Protection: Complainant Security

Because allegations of sexual abuse, sexual assault and rape type offenses are understandably difficult for complainants to formally report when they may fear exposing themselves to challenges or questions about their past sexual history or behavior, the Title IX investigatory and hearing process regulates and disallows certain questions both at the collegiate and primary school levels. More specifically, a respondent’s advisor cannot inquire nor provide evidence about a complainant’s past sexual conduct, behavior and activities other than for the purpose of establishing another person, not the accused respondent, perpetrated a particular offense or to prove consent between the parties. Obviously, due to the nature of these questions and the very limited scope of their relevancy and usefulness, careful attention is required to craft, articulate and pose questions of this type whether orally or in written form. Similarly, a complainant may never be put in the uncomfortable and difficult situation of answering these queries but should nonetheless be prepared to do so in the event the administrator monitoring and presiding over the proceeding finds the inquiry relevant.

Standard of Proof & Written Decisions: Legal and Other Guidelines for Hearings

Irrespective of whether the claims of sexual harassment and abuse involve students or faculty, schools have two burdens of proof they can assign as the legal threshold when determining responsibility after an in-person sexual harassment hearing – preponderance of the evidence or clear and convincing evidence. Ultimately, whatever the finding may be, the adjudicator, who cannot be the Title IX Coordinator or the investigator, must issue a written decision that also supports the conclusion with factual statements, rationale behind the decision, the levied sanctions against the respondent and what, if any, remedies the school will provide the complainant. Additionally, this memorandum must include instructions regarding the ability to appeal.

Appeals: Limited in Scope but Available to Both Parties

Whenever there is a finding that a respondent is responsible, a school must allow both parties to appeal. Similarly, the same rule applies to the dismissal of a formal complaint. However, other than when a college, university or primary school offers an appellate right to both parties for a bases other than those allowable by law, appeals cannot be taken merely because a complainant or respondent disagrees with a determination. These bases include a procedural irregularity that affected the outcome of the matter, newly discovered evidence that could affect the outcome of the matter, and/or Title IX personnel had a conflict of interest or bias, that affected the outcome of the matter.

Your Case, Your Education, Your Future

Whether a complainant or respondent, nobody wants to find him or herself mired in a pseudo-criminal process where they must relive a horrific incident or respond to baseless or exaggerated claims. As difficult as the Title IX investigation and process may be, finding yourself ill prepared to testify at a hearing is far more frightening. Because a complainant’s voice should be heard and justice should be available, just as an accused deserves the right to defend and potentially exonerate him or herself, there is no substitute for an advisor who cannot merely prepare you to testify and be cross-examined, but analyze and secure all available evidence, present information in a coherent manner and best ensure your rights are protected.

When your abuser may walk away free of responsibility or you are exposed to probation, suspension or even expulsion with a mark on your transcript, there is no substitute for advocacy, knowledge and experience. Saland Law’s student misconduct attorneys, former Manhattan prosecutors, and criminal defense lawyers stand ready in your time of need.

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