Practice Tips for Representing Students in Title IX Proceedings

By Jessica Conklin and Emily Claire Smith

Introduction
Title IX, a federal statute prohibiting discrimination on the basis of sex, including sexual harassment, applies to virtually every educational institution that receives federal financial assistance.[1] This article will focus on one subset of Title IX issues, those related to post-secondary school students involved in Title IX proceedings in their educational institutions. Practitioners handling Title IX investigations and hearings should be familiar with the statute itself, the detailed regulations promulgated by the Department of Education, and additional guidance released by the Department’s Office of Civil Rights. Furthermore, each educational institution promulgates its own institutional policies applying the Title IX regulations.

Unique Challenges in Title IX Proceedings
Attorneys representing students in Title IX proceedings do not act in their traditional role as counsel; rather they serve as “advisors” whose ability to be directly involved in proceedings may be limited under each school’s rules. Nevertheless, an attorney’s role is critical and comes with a unique set of challenges.

Title IX is a sensitive subject area. Students may be tempted to leave out certain details due to embarrassment, shame, or fear they will get in trouble. As an advisor, it is important to encourage the student to share every detail with you and to create a relationship of trust. It is also important to recognize that the student, regardless of whether they are the respondent or complainant, is likely going through a traumatic, isolating, and very stressful time. When possible, attorneys should use trauma-informed interview techniques, such as offering breaks, exhibiting open body language, refraining from interrupting, and formulating questions that do not feel accusatory or judgmental.

While the Title IX regulations set compliance requirements, they also give educational institutions flexibility to customize their policies and proceedings. Thus, important issues such as the definition of consent, the role of the advisor, and appeals standards can vary considerably among institutions. Additionally, the fact that there are no formal rules of evidence or published opinions makes each case unique.

Starting a Title IX Proceeding
A Title IX investigation starts with the filing of a formal complaint by either a complainant or a school’s Title IX Coordinator. Once a formal complaint is filed, the school must provide notice to the parties that includes a statement of the allegations with sufficient detail and sufficient time to prepare a response before any initial interview.[2]

The parties each have the right to an advisor of their choice who may be, but is not required to be, an attorney. If the school decides to investigate additional misconduct allegations, it must provide a new notice.

Gathering Evidence and Preparing for an Investigator Interview
Next, an investigator will interview the complainant, the respondent, and witnesses to prepare an investigative report. The investigator is supposed to be a neutral factfinder whose report will provide the relevant information for the ultimate decision makers.

It is important for advisors to conduct their own factual investigation, including creating an explicit timeline of events as these inquiries are often very fact-specific. Text messages, social media posts, calendar entries, photographs, ride-share receipts, and other information can provide valuable electronic information to help fully understand what transpired. It is also important to consider evidence that may exist but that your client does not have access to, including security footage, card swipe data, and deleted text messages.

Regardless of whether your client is a respondent or complainant, this process can be very difficult. Student memories are often imperfect, especially since they are often impaired by alcohol, drugs, trauma, or the passage of time.

Prior to any interview with the school’s investigator, an advisor will want to determine if there is potential for criminal exposure and carefully weigh the risks and benefits to their client of participating in the school’s process. Investigators may choose to record their interviews and generate transcripts, or they may rely on notes taken during the interview. If a transcript will not be provided to the parties, advisors should take careful notes. Oftentimes, investigators will want to get background information prior to jumping into the specific allegations. Parties should be prepared to talk about how they met and the nature of their relationship.

While parties may have an advisor at these interviews, advisors generally do not have a speaking role. Complainants and respondents should be counseled to feel comfortable asking for breaks to consult with their advisor. The advisor should be familiar with the school’s sexual misconduct policies.

Finally, the parties may choose to provide evidence to the investigator. As there are no rules of evidence, the process is more informal than in a court. For example, screenshots of a client’s text messages or social media account are often acceptable. While the process is informal, it is still important to label the files clearly and, if the school allows, consider providing a short description of the relevance of each piece of information.

Informal Resolution
Some matters, especially those of a less serious nature, may be resolved by informal resolution. Any informal resolution process requires the consent of both the complainant and the respondent and can be initiated any time prior to the school reaching a determination on responsibility.[3] The formal resolution process is paused while the parties engage in an informal resolution process. The informal process is not defined by the regulations and the form it takes is at the school’s discretion. If the parties are unable to come to an agreement, either party may withdraw from the informal resolution process and resume the formal process.

Negotiating a resolution through the informal process has the benefit of allowing a complainant some control over the outcome of the proceeding without the stress of engaging in formal interviews or participating in a hearing. For the respondent, negotiating a resolution through the informal process prevents a formal finding of responsibility. Informal resolutions can be flexible and creative. For example, an agreement may require that a respondent agree to loss of leadership positions, agree to a no-contact order, engage in counseling, fulfill community service requirements, and/or issue a letter of apology.

An institution is not required to allow parties to resolve grievances through an informal process and may determine that an informal resolution is inappropriate for certain allegations.

Reviewing and Responding to the Draft Report
Once the investigation is completed, if there has not been a resolution through an informal process, the investigator will prepare a draft report. This report must be provided to the complainant and respondent at least ten days prior to any hearing.[4] Both parties are given the opportunity to submit comments to the draft report. Ideally, at this point in the process, most, if not all, of the evidence has been submitted and the focus can be on reviewing the report for factual inaccuracies or misinterpretations. However, if the draft report reveals new information and further witness interviews or additional questioning would produce valuable and relevant information, this should be addressed. Oftentimes, the parties’ responses to the draft report will be included as exhibits to the final report.

Hearing
Post-secondary institutions are required to have a live hearing.[5] The decision maker(s) presiding over the Title IX hearing determine the relevance of questions and decide whether there has been a policy violation. The decision maker(s) may be a single person or a panel of individuals. Decision makers are often faculty members, but it is not uncommon for the panel to include individuals external to the institution, such as an outside attorney.

The hearing typically consists of: (1) opening statements, (2) cross-examination of both parties and witnesses, and (3) closing statements. Hearings may be conducted in person or virtually.[6] There are benefits and drawbacks to each. Virtual hearings provide the benefit of making parties feel more comfortable by appearing in familiar space, allow for privacy during breaks, and provide separation from administrators and the adverse party. However, it can be difficult to connect with the decision makers through a screen and it is much easier to focus on parties’ facial expressions in the virtual format. This can be negative if a party has strong reactions to statements of others. Parties should also be aware that hearings are required to be recorded by the institution.[7]

During the hearing, the advisor is usually limited to asking cross-examination questions and providing support during breaks. Some schools may allow an advisor to object to a question, prompting the decision makers to make a relevance determination. Students are usually required to deliver their own opening and closing statements.

There are limitations to an advisor’s cross-examination questions.[8] Questions seeking information about a party’s medical or mental health are not permitted without written consent. Likewise, questions and evidence regarding a complainant’s sexual predisposition or prior sexual behavior are not allowed except: (1) to prove that someone other than the respondent committed alleged conduct, or (2) to prove consent.[9] Practitioners should note that a complainant’s prior sexual history proffered in support of an allegation, such as testimony that a complainant was a virgin prior to an encounter, should also be excluded as irrelevant. Interestingly, there is no corresponding limitation regarding the respondent’s prior sexual history. Nevertheless, a respondent’s advisor should still object to the relevance of any such inquiry.

Decision makers may rely upon statements of parties and witnesses even if they choose not to submit to cross-examination.[10] If one party chooses not to participate in the hearing or refuses to submit to cross-examination, the advisor for the other party will need to carefully consider the student’s options. For example, if a complainant does not appear, a respondent might decide: (1) not to be cross-examined; (2) to answer questions from the board and their advisor but refuse to answer questions from the complainant’s advisor; or (3) may answer all questions asked. Furthermore, the respondent may still want their cross-examination questions to be heard and considered by the board despite the complainant’s failure to appear or refusal to answer.

Appeal
The appeal process is strictly regulated by each school’s policies. Parties must be offered the ability to appeal based on: (a) procedural irregularity that affected the outcome of the matter; (b) new evidence; or (c) conflict of interest. Institutions may offer additional bases for appeal so long as they apply equally to both parties.[11] Students generally have a very limited time in which to file an appeal.

Conclusion
Title IX practitioners face a unique set of challenges – navigating policies that vary by institution; engaging in proceedings that resemble mini-trials without rules of evidence; and appearing before hearing boards often made up of non-lawyer adjudicators. Advisors also engage in important work behind the scenes, preparing young and often overwhelmed clients to advocate for themselves by delivering strong opening and closing statements and preparing them to answer cross-examination questions. Despite these challenges, the practice can be very rewarding, as advisors support and advocate for students during an especially difficult time.

Jessica Conklin, senior counsel at Laredo & Smith, LLP, concentrates her practice in white collar criminal defense, government investigations, and school disciplinary hearings. Jessica works with students and their families who attend several local secondary schools, colleges, and universities in connection with disciplinary proceedings and Title IX investigations.

Emily Claire Smith focuses her practice on white collar criminal defense, government investigations and internal investigations. She is an associate at Huggard Law LLC.

[1] Title IX, Education Amendments of 1972, 20 U.S.C. §§ 1681-1688.
[2] 34 C.F.R. 106.45(b)(2).
[3] 34 C.F.R. 106.45(b)(9).
[4] 34 C.F.R 106.45(b)(5)(vii).
[5] 34 C.F.R. 106.45(b)(6)(i).
[6] Id.
[7] Id.
[8] See id. and Dept. of Ed., Office for Civil Rights, supra Questions 46 and 48.
[9] § 34 C.F.R 106.45(b)(1)(iii), (b)(6)(i).
[10] See Victim Rights Law Center v. Cardona, 552 F.Supp.3d 104 (D. Mass. 2021).
[11] 34 C.F.R. § 106.45(b)(8).