Previously, we discussed the challenges that attorneys face when representing students in Title IX investigations. This article will explain what to expect once an investigation is over. These processes are dictated by Title IX and the federal laws that govern it. However, colleges have different procedures for what happens after an investigation is closed.
A student is usually sent a report once a college completes their investigation. Some colleges offer a period of review and response where students can examine the investigation, correct any inaccurate information and dispute it. If allowed, this step is vital to not only ensure the report is accurate, but to also ensure that your client’s defense theory is presented to the college correctly. This procedure has been used to inform the college of not only the facts behind my client’s version but also the credibility arguments and weak evidence within the investigation file.
After the conclusion of an investigation, some colleges will allow students to submit their “defense” completely in writing. Attorneys can submit all the details of their client’s defense. This option is rare in Minnesota’s universities but it does exist. It is an advantage for students who are allowed to use it. Many colleges focus a lot of their resources on the narratives that the students have provided. Over-reliance on the narratives provided by the students can sometimes distract from the standards that should be used to evaluate the narratives. This is an opportunity that attorneys should never miss, as it could be the only way to get the factfinder to pay attention to the client’s interpretations of the rules and standards at work in the case.
The right to an hearing is perhaps the best process that students have available after an investigation has revealed a violation of the conduct code. Not all colleges provide this service. The rules and procedures of colleges that offer this service can be very different. A hearing is usually conducted by a panel of university staff, faculty and/or student members. A student may be able to cross-examine witnesses through an attorney. Most often, they will be able to testify themselves and present favorable witnesses. They may also be able to ask their own questions.
Even for attorneys with experience in courtroom advocacy, navigating a hearing can be difficult. Although the rules for a Title IX Hearing can be similar to those of a courtroom they are not ultimately governed by Minnesota civil or criminal procedure. I’ve spent hours trying to convince colleges that their proposed rules are unfair, but without success. It is important to raise arguments about fairness, but it may be better for your client to accept the unusual nature of the Title IX hearing.
After exhausting all resources, a student has the right to challenge any findings. A student can appeal not only the original finding of guilt, but also any procedural errors that may have occurred in the case. A lawyer should make sure to record any possible procedural errors that may have occurred during the case. This is usually done by writing to the Title IX Coordinator at the college. It will be helpful for any future appeal arguments. The attorneys will need to decide quickly whether to appeal, as the deadlines for filing an appellate are usually less than one week after any appealable college decision.
After the investigation is complete, students have many procedural options to choose from. These procedures allow students to present their case and advocate for themselves. Title IX attorneys should be familiar with the post-investigation processes and prepared to use them when necessary.
The first time Attorney at Law Magazine published the article Post-Investigation Procedures to Defend Title IX Proceedings in MN College Campuses.