For the Defense - Vol. 5, Issue 4 - 13

serve as the Title IX Coordinator15 or investigator
(thereby prohibiting the " single investigator "
model previously used at many schools).16
Schools bear the responsibility for gathering
evidence " sufficient to reach a determination, "
and must provide the parties an equal opportunity
to present witnesses and evidence, timely notice of
meetings or hearings, and equal access to evidence
obtained in the investigation.17 Investigative
reports must fairly summarize relevant evidence
and the parties must be given the chance to review
the evidence and respond.18
A party may be accompanied by an advisor of
their choice (who can and, in our opinion, should
be an attorney), to any meeting, interview,
hearing, or part of the university's grievance
process. The advisor will need to abide by the
restrictions imposed by the university on her or
his participation.19 Colleges and universities must
provide for a live hearing and allow advisors to
the parties to cross-examine the other party and
witnesses in real time, with the right to ask " all
relevant questions and follow-up questions,
including those challenging credibility. " 20 This
cross-examination must be conducted by the
party's advisor-directly, orally, and in real time-
and cannot be conducted by a party personally.21
Following the hearing, schools must issue
a detailed written determination regarding
responsibility.22 Schools may use a preponderance
of the evidence or a clear and convincing standard,
but must use consistent standards for students,
faculty, and staff.23 Schools also must offer both
parties an appeal, must implement the same
appellate procedures for both parties, and must
issue a written appeal decision.24

Potential Perils
Criminal defense counsel with clients facing
sexual misconduct proceedings should be mindful
of three potential perils in the new regulations
that could be implemented with greater punitive
effect: the emergency removal of a student
from campus or class, a decision-maker's possible
exclusion of exculpatory information contained
in statements by witnesses who refuse, or are
unavailable, to testify at the live disciplinary
hearing, and the potential diversion of a
misconduct case into a separate code of conduct
process with fewer protections.

Risk of Emergency Removal
The new regulations allow schools to take
punitive action (such as indefinite suspension)
against
a
respondent
student
without
going through a formal grievance process in
circumstances where a school determines that
emergency removal of the student is necessary.
The regulations state that a school is not precluded
from removing a respondent from the school's
education program or activity " on an emergency
basis, provided that the [school] undertakes an
individualized safety and risk analysis, determines
that an immediate threat to the physical health or
safety of any student or other individual arising
from the allegations of sexual harassment justifies
removal, and provides the respondent with notice
and an opportunity to challenge the decision
immediately following the removal. " 25
While the regulation requires that institutions
allow the accused student to " immediately "
challenge the removal, in an emergency removal
situation, a respondent will receive far fewer
protections than the formal grievance process
normally provides, and could be removed from
campus or class before the conclusion of a
grievance process or even when no grievance
process is pending. Serious consequences, such
as the irreparable interruption of a student's
education, could result from a school's rushed
judgments about what constitutes an emergency
and what constitutes an immediate threat to
physical health. There are no requirements that
the school periodically review its decision or place
a time limit on the removal.
In an effort to ensure that this regulation applies
to genuine emergencies involving the physical
health or safety of one or more individuals (which
includes the respondent, complainant, or others),
note that the Department of Education inserted
the word " physical " before health and safety in
the final regulations.26 The Department explained
that this clarification would help ensure that
the emergency removal provision would not be
used " inappropriately to prematurely punish
respondents by relying on a person's mental
or emotional 'health or safety' to justify " the
removal, as the emotional and mental well-being
of complainants could be addressed through
the supportive measures described in another
section of the regulations.27 Further, the school's
safety and risk analysis must be individualized,
Vol. 5, Issue 4 l For The Defense

13



For the Defense - Vol. 5, Issue 4

Table of Contents for the Digital Edition of For the Defense - Vol. 5, Issue 4

Contents
For the Defense - Vol. 5, Issue 4 - 1
For the Defense - Vol. 5, Issue 4 - 2
For the Defense - Vol. 5, Issue 4 - Contents
For the Defense - Vol. 5, Issue 4 - 4
For the Defense - Vol. 5, Issue 4 - 5
For the Defense - Vol. 5, Issue 4 - 6
For the Defense - Vol. 5, Issue 4 - 7
For the Defense - Vol. 5, Issue 4 - 8
For the Defense - Vol. 5, Issue 4 - 9
For the Defense - Vol. 5, Issue 4 - 10
For the Defense - Vol. 5, Issue 4 - 11
For the Defense - Vol. 5, Issue 4 - 12
For the Defense - Vol. 5, Issue 4 - 13
For the Defense - Vol. 5, Issue 4 - 14
For the Defense - Vol. 5, Issue 4 - 15
For the Defense - Vol. 5, Issue 4 - 16
For the Defense - Vol. 5, Issue 4 - 17
For the Defense - Vol. 5, Issue 4 - 18
For the Defense - Vol. 5, Issue 4 - 19
For the Defense - Vol. 5, Issue 4 - 20
For the Defense - Vol. 5, Issue 4 - 21
For the Defense - Vol. 5, Issue 4 - 22
For the Defense - Vol. 5, Issue 4 - 23
For the Defense - Vol. 5, Issue 4 - 24
For the Defense - Vol. 5, Issue 4 - 25
For the Defense - Vol. 5, Issue 4 - 26
For the Defense - Vol. 5, Issue 4 - 27
For the Defense - Vol. 5, Issue 4 - 28
For the Defense - Vol. 5, Issue 4 - 29
For the Defense - Vol. 5, Issue 4 - 30
For the Defense - Vol. 5, Issue 4 - 31
For the Defense - Vol. 5, Issue 4 - 32
For the Defense - Vol. 5, Issue 4 - 33
For the Defense - Vol. 5, Issue 4 - 34
For the Defense - Vol. 5, Issue 4 - 35
For the Defense - Vol. 5, Issue 4 - 36
For the Defense - Vol. 5, Issue 4 - 37
For the Defense - Vol. 5, Issue 4 - 38
For the Defense - Vol. 5, Issue 4 - 39
For the Defense - Vol. 5, Issue 4 - 40
For the Defense - Vol. 5, Issue 4 - 41
For the Defense - Vol. 5, Issue 4 - 42
For the Defense - Vol. 5, Issue 4 - 43
For the Defense - Vol. 5, Issue 4 - 44
For the Defense - Vol. 5, Issue 4 - 45
For the Defense - Vol. 5, Issue 4 - 46
For the Defense - Vol. 5, Issue 4 - 47
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For the Defense - Vol. 5, Issue 4 - 49
For the Defense - Vol. 5, Issue 4 - 50
For the Defense - Vol. 5, Issue 4 - 51
For the Defense - Vol. 5, Issue 4 - 52
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https://www.nxtbook.com/nxtbooks/pacdl/FORTHEDEFENSE_vol2_issue1_2017
https://www.nxtbook.com/nxtbooks/PACDL/FORTHEDEFENSE_vol1_issue4_2016
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