For the Defense - Vol. 7, Issue 3 - 40

strict rules about when information must be disclosed,
such as during the investigation or by a certain date
prior to the Title IX hearing. If the information is not
produced during the college's required time frame,
then the college might exclude it from the college's
evidentiary record or bar its consideration on appeal
from an adverse finding.
If there is an active police investigation into the
complainant's allegations, we work with our client's
criminal defense counsel to evaluate the extent to which
our client (the respondent) can and should participate
in the college's Title IX process, while still seeking to
preserve his or her civil and contractual rights. The Title IX
regulations require schools to presume that respondents
are not responsible and not to " draw an inference about
the determination regarding responsibility based solely
on a party's or witness's absence from the live hearing or
refusal to answer cross-examination or other questions. " 9
Sometimes, as a result of an ongoing or likely police
investigation, criminal defense counsel recommends that
the respondent not provide a statement to (or interview
with) the college's Title IX investigator or testify at a Title IX
hearing because you should assume that the respondent's
statements are discoverable. When that happens, even
though the inability of the respondent to share his or her
perspective will likely hamper their defense in the college's
Title IX process, there may be other ways in which the
respondent can participate. For example, a respondent
could produce messages exchanged with the complainant
or witnesses that relate to the allegations at issue, such as
the ability and willingness of the complainant to consent
to sexual activity, friendly exchanges after an alleged
assault, or the overall timeline of events. A respondent
might also have photographic or video evidence that is
relevant on issues such as their own or the complainant's
level of intoxication or incapacitation or may be able to
obtain such information from dorm security cameras. A
respondent may also consider submitting expert reports
to the college, such as reports from a sexual assault nurse
examiner (SANE) or a toxicologist. A respondent also can
respond to the Title IX investigator's draft investigation
report and request the pursuit of additional information
or further questioning of the complainant or witnesses.
Further, a respondent's advisor can cross-examine the
complainant and witnesses at the hearing. So even
if there is an active police investigation, and criminal
defense counsel recommends that the respondent does
not communicate his or her story in the college's Title IX
proceeding, he or she still may be able to support their
defense in other ways.
Considerations Regarding College Processes
As you evaluate the challenges your client faces with
a pending Title IX complaint, it is important to keep in
mind that the current Title IX regulations require colleges
40 For The Defense l Vol. 7, Issue 3
to provide key procedural protections to any student (or
faculty member) accused of sexual misconduct before
a determination is made as to their responsibility. A
respondent must be presumed not responsible for the
alleged conduct unless and until a final decision is made
at the conclusion of the grievance process, which includes
an investigation followed by a live hearing with crossexamination-by
the party's advisor-of the opposing
party and any witness.10
Schools must have an investigator,
who is not also the Title IX coordinator or a decisionmaker,
investigate allegations and objectively evaluate
all relevant evidence, both inculpatory and exculpatory.11
Schools are responsible for gathering evidence " sufficient
to reach a determination " and must provide the parties
an equal opportunity to present witnesses and evidence,
as well as equal access to evidence obtained in the
investigation.12
Investigative reports must fairly summarize
relevant evidence and the parties must be given the
chance to review the evidence and respond.13
You may be surprised to learn, though, that not
everyone accused of sexual misconduct on a college
campus gets the benefit of the current Title IX procedural
protections. Some students find themselves shunted off
into a non-Title IX sexual misconduct process with policies
and procedures that may not provide much in the way
of procedural protections. In our experience, colleges take
every opportunity to divert a sexual misconduct case away
from Title IX's more robust due process/fairness protections,
and they are allowed to do this by the regulations in the
following circumstances.
Colleges are free to use their non-Title IX processes if
the alleged conduct does not meet the jurisdictional
threshold requiring application of a policy consistent with
Title IX.14
Unlike the required
This generally occurs when a college determines
that the alleged misconduct did not occur in its " education
program or activity " (e.g., in a classroom or dormitory),
as required for Title IX jurisdiction.15
features of a college's Title IX policy, a college's nonTitle
IX sexual misconduct policy could permit a singleinvestigator
model, in which one person conducts the
investigation and makes a determination of responsibility.
A non-Title IX policy may not necessarily require the
college to conduct the same level of investigation or give
the parties the same level of access to information they
would have in the Title IX process. It might also preclude
the parties from having an attorney serve as their advisor
or may severely limit the advisor's role. Also, even if there
is a live hearing component, it may consist of nothing
more than allowing the parties to make brief statements
to a decision-maker. Nevertheless, even if allegations do
not trigger a college's obligations to proceed under its
Title IX policy, practitioners should be aware that state
statutes and case law in a particular jurisdiction may still
require colleges to provide certain procedural rights in
their disciplinary processes.16
For the Defense - Vol. 7, Issue 3

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