For the Defense - Vol. 5, Issue 4 - 15

The effect of this rule on statements that contain
information that is exculpatory or helpful to the
respondent remains unclear. The Department
does not address a scenario in which a witness's
statement contains information that exculpates
the respondent or corroborates his account, but the
witness is not willing to submit to or be available for
cross-examination. For example, consider another
scenario in which a witness and the complainant
are close friends who had a discussion the morning
following the complainant's sexual encounter
with the respondent, and the witness reported
to the investigator information that contradicted
the complainant's account to the investigator.
Thereafter, the witness refuses to appear at the
hearing, and now her statements-which would
be helpful to the respondent (and which, if part
of an interview, would be in the investigation
report and visible to the adjudicator)-cannot be
relied upon by the adjudicator. This situation-
where evidence that supports the respondent's
account or undermines the complainant's account
is disregarded-very well could lead to an unfair
result.
Discuss this waiver with your client with the same
seriousness you would discuss the waiver of any

30
Risks
of a Separate
Under a Separate
constitutional
right.Process
Code

* Request discovery early and in writing. That way,
if the Commonwealth
fails toaprovide
requested
Although
a school must dismiss
formal complaint
anyconstitute
required continuance
will be onas
if itdiscovery,
would not
sexual harassment
the
prosecution.
If
you
have
to
follow-up
with the
defined in the Title IX regulations (even if proved)
Commonwealth
about
they " education
have failed to
because
it did not occur
indiscovery
the school's
hand over,
be sure to
suchagainst
requests
program
or activity, "
ormemorialize
did not occur
a in
person
in thesuch
United
a writing
as anStates,
email.the school still could
take action under another provision of its own
* If of
a continuance
due
to the pursuant
code
conduct.38 isArequired
grievance
process
failureofofconduct
diligence,often
be sure
to
to aCommonwealth's
college's own code
does
put
that
on
the
record
at
the
time
the
continuance
not provide parties with the same protections
requested.
Even if thein
judge
does not rule
in
thatis would
be available
a grievance
process
your
favor,
you
have
at
least
preserved
the
issue
pursuant to the Title IX regulations. For example, for
appeal.
non-Title
IX disciplinary processes may use a single
investigator model, in which one person conducts
* All motions to dismiss pursuant to Rule 600 must be
the investigation and
makes a determination
31
File your client's motion after the
made
in
writing.
of responsibility; may not give parties the same
365-day
periodto
has
elapsed.
If the trial
judge rules
access
and ability
analyze
evidence
collected
by
against
you
and
subsequently
the
Commonwealth
the investigator; and may not permit parties the
causes
another an
substantial
file
ability
to engage
advisor period
who isofandelay,
attorney.
a
new
Rule
600
motion
based
on
this
additional
Practitioners should be mindful that, regardless of
litigate it prior
any
trial
to preserve
the time
Title and
IX regulations,
caseto
law
and
state
statutesan
objection
to
the
additional
time
period.
may require colleges to provide certain procedural
rights in their disciplinary processes.39
* At the Rule 600 hearing, after the defense has
made a prima facie showing that the defendant
has not been brought to trial within 365 days,
the Commonwealth bears the burden of proving
that they have nonetheless acted with diligence.
This means that after the defense has made such

Conclusion
Attorneys whose clients are parties to Title IX
disciplinary proceedings must understand the
protections to which their clients are entitled, as well
as the potential perils of a school's interpretation
of the regulations that could undermine a just
outcome. We are also concerned that change will
be slow, even with these regulations in place, and
-although policies and procedures may comply
on their face-they will still be administered by
personnel steeped in the culture from the past
nine years. But, the new regulations are a good
start to providing a foundation for fairer processes
for all parties involved in these very complicated
matters.
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Title IX of the Educational Amendments of 1972, or 20
U.S.C. § 1681, provides that " No person in the United States
shall, on the basis of sex, be excluded from participation in,
be denied the benefits of, or be subjected to discrimination
under any education program or activity receiving Federal
financial
assistance
. . . . " ). Nondiscrimination
onboth
the in and
Using
the strategy
above, people
Basis of Sex in Education Programs or Activities Receiving
outside
my office
have
hadbytremendous
Federal
Financial
Assistance,
a Rule
the Education success with
Rule 600(May
motions.
Oftentimes,
just making it plain
Department
19, 2020):
https://www.federalregister.gov/
documents/2020/05/19/2020-10512/nondiscrimination-on-theto the Commonwealth that you intend to seriously
basis-of-sex-in-education-programs-or-activities-receiving-federal.
2 litigate this issue can get you results. It is only one
Although Title IX also applies to K-12 schools, the authors focus
your and
arsenal,
but because
a win means
thisweapon
article onin
colleges
universities.
The main differences
between
the
institutional
obligations
at
K-12
schools
versusnever
discharge, it is a potent weapon that should
colleges is (1) an elementary school parent or guardian can bring
be overlooked.
the complaint, and (2) there is no requirement for a live hearing
with cross-examination.
3
These
" remedies " may include the imposition of a no contact
NOTES:
order,
1 the suspension or expulsion of a respondent from the
Commonwealth v. Mills, 162 A.3d 323 (Pa. 2017).
college,
or,CifonSt
the. A
respondent
remains on campus following
2
U.S.
mend. VI; PA. CONST. art. 1, § 9.
the decision
or
will
return
to
campus
following
a suspension,
3
Commonwealth v. DeBlase, 665
A.2d 427,
431 (Pa. 1995).
providing
the
complainant
with
a
first
choice
of
residence
halls or
4
Barker v. Wingo, 407 U.S. 514, 530 (1972)
(articulating
the
classesconstitutional
that might otherwise
be
shared
with
the
respondent.
test);
Commonwealth
v.
Preston,
904
A.2d
4
Any practitioner who represents a student accused of
1, 10 (Pa. Super. Ct. 2006) (the Barker test is an entirely
misconduct in a college or university disciplinary process
separate analysis from Rule 600 and therefore needs to be
should read the Department of Education's Title IX
raised separately).
regulations
(Nondiscrimination on the Basis of Sex in
5
Pa.R.Crim.P. Rule 600(2)(a); see also Commonwealth
Education Programs), https://www.federalregister.gov/
v. Kearse, 890 A.2d 388, 395 (Pa. Super. Ct. 2005) (no
documents/2020/05/19/2020-10512/nondiscrimination-on-the " prejudice " need be shown to obtain Rule 600 dismissal).
basis-of-sex-in-education-programs-or-activities-receiving-federal,
While Rule 600 has a more definitive time period, the sole
the September 4, 2020 Questions and Answers Regarding the
focus of Rule 600 is on the action of the Commonwealth.
Department's Final Title IX Rule, https://www2.ed.gov/about/
Thus, a constitutional argument should be forwarded
offices/list/ocr/docs/qa-titleix-20200904.pdf, and the college or
whensexual
a delay
prejudices
a defendant
and
that
university's
misconduct
policy
pursuant to
Title
IX delay
and itswas
primarily
caused
by
the
courts.
code6 of conduct.
Pa.R.Crim.P. Rule 600(D)(1).
1

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Click here to view and/or print the
full notes section for this article.

About the Author

Vol. 5, Issue 4 l For The Defense

15

Katherine Ernst is an


https://www.federalregister.gov/documents/2020/05/19/2020-10512/nondiscrimination-on-the-basis-of-sex-in-education-programs-or-activities-receiving-federal https://www.federalregister.gov/documents/2020/05/19/2020-10512/nondiscrimination-on-the-basis-of-sex-in-education-programs-or-activities-receiving-federal https://www.federalregister.gov/documents/2020/05/19/2020-10512/nondiscrimination-on-the-basis-of-sex-in-education-programs-or-activities-receiving-federal https://www.federalregister.gov/documents/2020/05/19/2020-10512/nondiscrimination-on-the-basis-of-sex-in-education-programs-or-activities-receiving-federal https://www.federalregister.gov/documents/2020/05/19/2020-10512/nondiscrimination-on-the-basis-of-sex-in-education-programs-or-activities-receiving-federal https://www.federalregister.gov/documents/2020/05/19/2020-10512/nondiscrimination-on-the-basis-of-sex-in-education-programs-or-activities-receiving-federal https://www2.ed.gov/about/offices/list/ocr/docs/qa-titleix-20200904.pdf https://www2.ed.gov/about/offices/list/ocr/docs/qa-titleix-20200904.pdf https://nxt-staging-books.s3.amazonaws.com/nxtbooks/PACDL/FORTHEDEFENSE_vol5_issue4_2020/src/docs/Title_IX_Protections_Notes.FINAL.pdf

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