Due Process: Title IX vs. Criminal Prosecution

This article is not legal advice, but is intended to be an informative article describing the basic concept of “due process” and the difference between the Title IX and criminal processes related to sexual misconduct. Sieben and Cotter, PLLC takes no position as to any recent allegations in the news related to this topic.

The following is presented in a four-part series: Part I: What is “Due Process”; Part II: Due Process In Criminal Sexual Conduct Prosecutions; Part III: Due Process In A Title IX Sexual Misconduct Investigation (this article); and Part IV: Comparison of the Title IX and Criminal Prosecution Processes. Prior to reading Part III below, read Parts I and II by clicking the links above.

History of Title IX

Title IX of the Education Amendments of 1972 (“Title IX”) is a federal civil rights law prohibiting discrimination on the basis of sex in federally funded education programs and activities. All public and private elementary and secondary schools, school districts, and colleges/universities receiving any federal financial assistance must comply with Title IX. Most people may think that this law only applies to gender equality in sports, but there are actually ten key areas protected under the law. The areas are: Access to Higher Education, Career Education, Education for Pregnant and Parenting Students, Employment, Learning Environment, Math and Science, Sexual Harassment, Standardized Testing and Technology. Applicable to this article, Title IX requires schools to independently investigate (aside from a criminal investigation) and address sexual violence involving its students, faculty and/or staff.

Schools’ Obligations to Investigate Sexual Misconduct

Title IX requires that school officials involved in investigating or evaluating allegations of sexual misconduct, including members of any school grievance or disciplinary body, must be trained specific to matters that are common in sexual misconduct cases. This includes matters relating to consent, the use of force, the handling of forensic evidence, how to assess victim responses to sexual assault, and how to assess credibility, how to evaluate evidence, and the appropriate evidentiary standard to assess it. The Title IX Investigator is typically a faculty or staff member who works under the Title IX Director, usually within the Equal Opportunity Office. The investigator training course typically consists of 4-6 classroom instruction.

When a school knows, or reasonably should know, of possible sexual violence, it must take immediate and appropriate action to investigate and determine what occurred. If the school determines that sexual violence occurred, it must take prompt and effective steps reasonably calculated to end the sexual violence, eliminate the hostile environment, and, as appropriate, remedy its effects.This process is highly victim centered, requiring the school to take interim actions to ensure that the accused is separated from the victim in terms of housing, class scheduling and student activities.

Due Process in Title IX Sexual Misconduct Investigation

An accused’s due process rights attach during a Title IX sexual misconduct investigation because a school, public or private, receives federal government funding to carry out the law’s requirement. Therefore, it is considered a government action threatening to deprive a person of their liberty (reputation) and/or property interest in pursuing an education.

In a Title IX investigation the accused is afforded much less due process than they would in a criminal investigation/prosecution. This is primarily because the severity in punishment is much less. In a Title IX investigation the accused is not found guilty of a crime and cannot be sent to prison. Schools are given wide discretion in determining proper punishment. The typical punishment in these cases can range from a warning (least) to expulsion or withholding of degree (most severe).

Public universities are given broad discretion in determining the appropriate procedure and may establish any type of proceeding or mechanism that allows accused students a fair opportunity to hear the evidence against them and to tell their side of the story. In a Title IX sexual misconduct investigation the accused is typically afforded the following due process rights/protections:

1. The right to have your case heard under regular procedures used for all similar cases
2. The right to receive notice of the allegations against you
3. The right to hear a description of the university’s evidence against you
4. The right to present your side of the story to an impartial panel

Title IX Procedural Requirements

Unlike the criminal procedure, school’s disciplinary committees or decision makers do not follow the “beyond a reasonable doubt” standard of proof. Title IX investigations follow the “preponderance of the evidence” standard of proof. This means that the accused can be disciplined if the evidence establishes that it is more likely than not (Roughly 51%) that the sexual misconduct occurred. This is the lowest standard of proof used in American courts. The Title IX process typically follows the following procedure.

1. Report/Allegation: The school will receive a report of sexual misconduct. The reports are typically forwarded to an individual in charge of investigating these allegations.

2. Investigation: The investigator will first interview the alleged victim. The investigator will also interview other witnesses including those provided by the alleged victim. Then, the school will send notice of the complaint to the accused and schedule an interview. The accused is interviewed along with any additional witnesses. The investigator will then collect any and all available evidence ranging from videos, texts, emails and/or medical reports. Finally, the investigator may go back to the alleged victim to go over any additional information or evidence.

3. Report and Findings: The investigator will draft a report of his/her findings to the school board. Under Title IX guidance, investigators must complete this process within 60 days. The school will inform the alleged victim and the accused of their findings as to whether the student conduct code was violated and their resolution. Importantly, there is no automatic right to a hearing and schools are not required to provide one. Some schools do allow for a hearing, if so the parties will be notified that they have a limited time (a few days) to request a hearing

4. Hearing: If the school allows for a hearing and the proper request is made, then either party may have a hearing in front of a student behavior committee, consisting of a panel of staff, faculty and students. The panel will review the evidence, hear testimony, determine if there is a violation and impose an appropriate sanction.

5. Appeal: There is no automatic right to an appeal. Some schools do allow for a review of the formal hearing’s disciplinary findings. Generally, a single person is designated as an Appeals Officer. The appeal (if any) consists of the Appeals Officer reviewing the record to determine if there were any serious errors that resulted in unfairness. The Appeals officer makes the final decision for the school and may accept, reject or modify the original decision.

Unlike a Criminal Prosecution Your Rights Are NOT Guaranteed and You Are Entitled To Far Less Protections

Generally, the accused student and the victim have equal rights throughout the process. There are a number of rights afforded to those accused criminally that are noticeably absent in this context:

• While the school cannot interfere with your right to hire an attorney, it may block the attorney from participating in the hearing.
• Although you have a right to view the evidence against you, it does not have to be a complete record and may only be a summary (written by the school) highlighting the evidence against you.
• There is no automatic right to a hearing in front of a panel. It is not required but the school may choose to allow for this process.
• There is no right to appeal the findings or penalties.
• You are not guaranteed the right to challenge evidence
• You do not have the right confront your accuser.
• There is no automatic right to be present during the hearing.

Consent Is an Even More Complicated Issue

Title IX defines consent more narrowly than Minnesota’s criminal statutes, requiring what is called “affirmative consent.” Affirmative consent is defined as

Informed, freely and affirmatively communicated willingness to participate in sexual activity that is expressed by clear and unambiguous words or actions. Clear and unambiguous words or actions are those that are freely and actively given by informed individuals that a reasonable person in the circumstances would believe communicate a willingness to participate in a mutually agreed upon sexual activity.

• The following factors will be considered when determining consent:
• It is the responsibility of each person who wishes to engage in the sexual activity to obtain consent.
• A lack of protest, the absence of resistance and silence do not indicate consent.
• The existence of a present or past dating or romantic relationship does not imply consent to future sexual activity.
• Consent must be present throughout the sexual activity and may be initially given, but withdrawn at any time.
• When consent is withdrawn all sexual activity must stop. Likewise, where there is confusion about the state of consent, sexual activity must stop until both parties consent again.
• Consent to one form of sexual activity does not imply consent to other forms of sexual activity.
• Consent is NOT obtained where:
  • There is physical force, threats, intimidation or coercion.
  • There is incapacitation due to the influence of drugs or alcohol.
  • There is the inability to communicate because of a physical or mental condition
  • An individual is asleep, unconscious or involuntarily physically restrained.
  • An individual is unable to understand the nature or extent of the sexual situation because of mental or physical incapacitation or impairment.
  • One party is not of legal age to give consent pursuant to Minnesota state law.

Unlike in a criminal prosecution, once the victim alleges that the sexual activity was non-consensual, the burden likely shifts on you to prove that you obtained “affirmative consent.” If you choose to remain silent, the then school’s investigating body will only have the victim’s side of the story to determine whether or not he/she affirmatively consented. Your participation in a Title IX investigation can have a negative affect on your criminal prosecution. There are pros and cons to both Title IX and criminal sexual assault prosecutions, which will be broadly described in the next article.