What Elements Will A School’s Title IX Investigation Include And What Are The Rights Afforded To The Accused During That Investigation?
Once the formal complaint is issued and typically signed by the claimant, it is communicated to the respondent. The respondent is made aware of the formal complaint against them and is directed to the university’s relationship violence, sexual misconduct policy, and procedure so that the student is made aware by the school of their rights as an accused student in a Title IX situation. The process for going forward once a formal complaint has been issued is relatively similar across different schools. It starts with that formal complaint and notices being given to the respondent. The investigator then meets with the respondent in what is best described as an introductory meeting. They will explain first the procedure and then the student’s rights under the school’s policy at that meeting.
When that meeting is concluded, they will schedule a time for the respondent to be interviewed. Remember, the claimant has already been interviewed by the investigator before the formal complaint was issued. The investigator will then interview any and all witnesses requested by the claimant if they haven’t done so already. After all the complainant’s witnesses are interviewed, they will question the respondent. Schools make it very clear that a student is not required to submit a formal statement. A formal statement can be made by submitting a written document, which is very commonly done. It’s It is equally common for the statement to be made by an interview. The option between a written statement and a formal interview is frequently left at the discretion of the respondent.
The school will go out of its way to make sure the respondent understands that his/her participation is voluntary, and that the respondent does not have to participate. There are many due process reasons and concerns the school has for letting the respondent know that their participation is voluntary. The school is very conscious and cautious of the idea that a student has a Fifth Amendment Privilege against self-incrimination in any criminal proceeding. Since this is not a criminal proceeding and the Fifth Amendment privilege against self-incrimination does not apply, they don’t want a student to feel as if they have to participate because anything the student says to the Title IX investigator will undoubtedly be shared with the police if the investigator determines that the allegations make out the elements and bases for a criminal offense.
This is the reason why the schools are so careful to point out that participation is voluntary. The problem is the very obvious Catch-22. That is to say that while the school says, “Your participation as the respondent is voluntary and not mandatory,” if, as the respondent, you choose not to participate, they can and will make an adverse inference from your lack of participation. In addition, the university’s Title IX grievance procedure doesn’t stop if the respondent chooses not to participate. So the case continues without the respondent’s side of the story, which is a real problem. It is a real catch-22 for the respondent because they are being forced to choose what’s best for them in a criminal case, which is not speaking to anyone and not having to self-incriminate themselves; versus what is best for them in the Title IX grievance procedure, which could ultimately lead to them being suspended or even expelled from the school.
For that reason, most students choose to participate in the investigation and hearing process, and give a statement to the school. Again, as I have said, that statement can be made by submitting a written document, providing the respondent’s version of the events, their side of the story, or it can be done by submitting to an interview with the investigator. At the close of that respondent’s interview, the investigator will ask the respondent if they have any witnesses, they would like interviewed. The respondent has the opportunity to give the investigator witness names and contact information. Then, and the investigator will interview those witnesses. After that, the investigator prepares the draft of an investigation report with proposed findings of fact and conclusions of whether or not a Title IX violation has occurred. Both sides, the claimant and respondent, will be given a short time, typically ten to fourteen days, to file objections for that report. Those objections range from the factually driven, or it can go as far as objecting to a conclusion like, “I disagree with your interpretation of sexual conduct under the university’s Title IX policy,” or “You say I violated the university’s policy on sexual assault because I grabbed her breast while we were dancing and that didn’t happen. There are three eyewitnesses that said it didn’t happen”.
The investigator takes any objections from either side and incorporates those objections into the draft report to develop a final report. That final report is issued and sent to both the claimant and the respondent. If both sides accept the information, the case can end there. If the procedure does not fall under the purview of Title IX, so if the complaint does not include sexual misconduct or sexual assault, and therefore falls outside of Title IX, some schools end their relationship violence and misconduct procedure with the final report. However, not every school does; some still allow the claimant and the respondent to ask for a formal hearing. More importantly, if the allegation falls under the purview of Title IX, under the current federal regulations the school is required to give the accused student the right to a formal hearing, including several important due process protections.
That hearing will be conducted either by a single Title IX hearing officer or, in some cases, a panel of Title IX hearing officers. There was a time where it was common in universities and colleges that the investigator would serve as the hearing officer or, in the case of a panel, as one of the three hearing officers. Under the DeVos regulations related to Title IX, that approach has been eliminated. Most schools and courts interpret the current federal regulations governing Title IX to understand that the hearing officer should not be the same person who conducted the investigation. I am not currently aware of any school in Michigan, or the Midwest, that allows the person that investigated the allegations to serve as the hearing officer or one of a panel’s hearing officers.
At that hearing, the accused respondent and the claimant are given the opportunity or right to be represented by an advocate. The respondent is given the right to question or cross-examine the claimant and their witnesses, which is almost always done through the advocate so that the respondent themself is not the one directly asking the alleged victim questions. The respondent is given the benefit of the doubt, which is to say they start with the assumption that they have not violated Title IX or the school’s relationship violence sexual misconduct policy. But importantly, unlike a criminal case where the accused is given the benefit of beyond a reasonable doubt standard, the accused in a Title IX case is subject to the lowest standard of proof the law recognizes. That standard of proof is called a ”preponderance of the evidence,” which simply means 51% — 49%. Whichever side tips the scales ever so slightly in their favor wins. The presumption of not being responsible applies only when the scales are entirely balanced at fifty-fifty. So, the accused or respondent has the right to a formal hearing to question the claimant and their witnesses through their advocate, they are entitled to a presumption that they are not responsible, and they are entitled to a preponderance of evidence standard at the hearing.
The hearing officer or panel of hearing officers will be given a copy of the investigator’s report before the hearing. The investigator’s report is a substantive document, and contains a summary of the interview of the claimant, all the claimant’s witnesses, any collaborative evidence the claimant’s submitted by way of texts, email, social media posts, etc.; it will also include a summary of the interview of the respondent, and any of the respondent’s witnesses as well as any evidence that the respondent submitted by way of texts, email, social media posts, etc. At the hearing, the hearing officer will typically begin by asking the claimant, “Do you have anything to add to your statement?” After that, the hearing officers may ask the claimant some questions. Then, the respondent’s advocate will be given the opportunity to ask the claimant whatever cross-examination questions the respondent wants asked.”
The advocate for the claimant will then be offered the opportunity to ask any redirect or clarifying questions based on those cross-examination questions, and the claimant will be done. That process will repeat for the claimant’s witnesses, with the respondent’s advocate being given a chance to ask the claimant’s witnesses questions, and then the claimant’s portion of the case will conclude. The respondent will then be asked by the hearing officer, “Do you have anything to add to your statement in the investigator’s report?” After the respondent is given a chance to add anything to the investigator’s report, the claimant’s advocate will be given a right to ask the respondent any questions the claimant wants asked. The respondent’s advocate will be allowed to ask any redirect or clarifying questions of the respondent. When the respondent is done, the process is repeated for the respondent’s witnesses. When respondent witnesses are finished, the testimonial part of the hearing concludes.
The hearing officer, if it’s a single person, or the panel of hearing officers, will then meet to discuss the proofs and make a determination. They will either substantiate the Title IX violation or not. Following that ruling, both sides have a limited right to appeal the decision. Some schools have it go to the same hearing officer or panel of hearing officers; other schools allow the appeal to go to a new person, frequently the assistant dean of student affairs. Once the appeal has been resolved and the final result is entered, if the Title IX violation is dismissed, everyone goes on their way; if the Title IX violation is substantiated and determined to have occurred, the case proceeds to a sanctioning phase. Sanctions can range from relatively mild punishments to severe punishments: they could include forcing the respondent to change their schedule if they had classes with the claimant, so they don’t have contact with one another. It can consist of suspension for a period of time, and it can even include expulsion, being kicked out of the university, and being prevented from ever going onto university property.
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