"For the purposes of a Department of Education investigation, one single instance of sexual violence is sufficient to qualify as creating a hostile educational environment."
To be compliant under Title IX law - and not risk their federal funding - schools must follow certain steps to prevent acts of sexual misconduct and to take disciplinary action against perpetrators of sexual violence.
And schools will not hesitate to do so, even in the face of contrary evidence.
- All it takes is a single one-night stand following an alcohol-soaked party for a student to face a Title IX investigation and likely disciplinary action.
The Process in 5 Phases
The student disciplinary process generally is broken down into five phases:
1. The Investigation
University staff is under an obligation to file a report upon learning of a possible violation of the disciplinary code. Also, universities have worked diligently to ensure that alleged victims of student code violations have the means to report the alleged violation. Students are now "strongly encouraged" to report incidents of misconduct. Upon receiving a report of violation, an investigation process follows where witnesses are interviewed, evidence is gathered, and the accused student is confronted.
2. Pre-Hearing Procedures
If the university officials find a reasonable basis to substantiate the reported violation, the accused will be charged, notified, and a hearing date will be set. The student will likely receive an investigative report prepared by the university investigator which summarizes the evidence against the accused.
At the hearing, the student will be asked to admit, deny, or remain silent as to the alleged violation. Facts will be presented by both sides, and both sides will argue their version of events. Hearings can be recorded, and are usually closed to the public. The hearing typically proceeds similar to a trial (opening arguments, evidence presentation, and closing), but rules of evidence do not apply. At the conclusion of the hearing, the student disciplinary body will make a determination of the accused's guilt or innocence on the alleged violation. The standard of proof necessary to find a violation is either "the preponderance of the evidence" (more likely than not), or the slightly higher standard of "clear and convincing evidence," that the student broke the code. These are substantially lower burdens than in a criminal case, where the standard is "proof beyond a reasonable doubt."
4. Sanction Phase
If a violation is found, the panel must determine what the appropriate sanction or punishment will be for the offense. Much like sentencing in a criminal case, the accused will be afforded an opportunity to present mitigating evidence and argue for leniency. Because of the university setting, sanctions are meant to be "educational" not punitive. The most serious sanctions imposed for a violation is typically suspension or expulsion. Other sanctions include disciplinary probation and a requirement to complete counseling, or substance abuse treatment. Further, the university may defer the conference of a student's degree until the student complies with the conditions imposed upon him or her as sanctions.
If a student is found responsible at a hearing, he or she may usually appeal to a higher hearing panel as set forth in a particular university's student conduct code.
Lower Burden of Proof
In the case of sexual misconduct, it is important to know that universities, by and through their respective Title IX compliance offices, have implemented rules that are far broader than the criminal rules (read more on the burden of proof). That is, facts that support a finding of a sexual misconduct in a university setting would often, but not necessarily, fall well short of the facts necessary to prove a criminal law violation.
However, incriminating, voluntary statements made by a student during a disciplinary code violation investigation, can be used against the student in the event that the case is selected for prosecution by a district attorney or law enforcement.
This potential spillover between disciplinary hearings and criminal charges, particularly where the allegation is as serious sexual misconduct, underscores the wisdom of allowing the accused representation at student code hearings.
Contact Roberts Law Group, PLLC
Although students accused of sexual misconduct are purported to have "rights" to a fair process under Title IX, the law undoubtedly favors victims of sexual misconduct or violence.
Reducing acts of sexual violence on the college campus is a worthy goal, and we should continue to pursue that goal, but not at the expense of due process, and certainly not at the expense of the innocent.
If you've been accused of misconduct and you're facing a Title IX investigation, call 866-630-2389. Roberts Law Group, PLLC is located in Raleigh. We defend students throughout North Carolina.
North Carolina vs. O.S.
Charge: First Degree Forcible Rape and First Degree Kidnapping
Facing: 26 - 33 years in prison
Case involved allegations of forcible rape at gun point. We were able to gather evidence to attack the accuser's credibility and discredit her story. The prosecution dismissed the charges.