The rise of the #metoo movement, social media use by teenagers, and diversity, equity and inclusion efforts have all contributed to a dramatic increase in the number of school disciplinary hearings (commonly known as Title IX litigation). These investigations and hearings frequently take place at high schools and college campuses across the country. These hearings are not typically recorded by video but they are frequently transcribed. If and when a record of the hearing is made, the transcript and the statements within will become part of a permanent record which may be used at future proceedings should the matter become criminal in nature.
A Title IX action is used loosely to cover a variety of school disciplinary hearings. These situations range from sexual assault to bullying to plagiarism. Moreover, the parameters of a Title IX hearing may vary from institution to institution. At the same time, certain safeguards have been put into place by the statute itself in order to assure due process to the student being accused of wrongdoing within the school setting.
Title IX History, Modern Day Expansions, and Examples
Title IX of the Education Amendments of 1972, a federal civil rights law, was originally enacted to prohibit certain discrimination in education programs and activities. Title IX complaints cover a vast range of sex-based discriminatory acts and hostile environment claims. As mentioned, these are broad buckets which may encompass: sexual assault, domestic violence, rape, sexual touching, stalking, sexual harassment, “quid pro quo” harassment. Hostile environment type claims include situations spanning from bullying to harassment to gender-motivated physical attacks.
Sexual Assault
Title IX claims have evolved and advanced with today’s society. The first major advancement with these claims has come from the rise and staying power of the #metoo movement. As one can imagine, children in middle school and high school who are having their first romantic encounters often find themselves in situations which may lead to a claim of unwanted sexual touching or even forcible rape. Unfortunately, these claims have only risen in recent years and many, many children have found themselves at the cross-hairs of a school investigation into a sexual assault.
Social Media and Bullying
Platforms such as Instagram, Meta/Facebook, TikTok and Snapchat, provide a common avenue for a host of Title IX claims related to bullying and harassment. Indeed, posts and messages on these platforms are frequently used as evidence against individuals being accused through a Title IX litigation. This, too, has become a hot-button topic in the school setting with the prevalence of such platforms as a means for communication. Should your son or daughter be the subject of a school disciplinary hearing, it is critical that your attorney swiftly save and organize any and all data on these platforms instead of relying on school investigators to turn over such information.
Race-Based Attacks, LGBTQ, and DEI
In today’s world, the subset of classes protected by discriminatory and hate crime statutes has expanded greatly. As such, an assault, harassment or sex crime claim may now be accompanied by an enhancement due to the proposed victim’s race or sexual orientation. As one can imagine, school investigators, victim’s rights advocates and a victim’s parents are likely to treat these claims with extreme care and pursue an aggressive case against the accused. In turn, if accused of committing a hate crime against another student, it is imperative that your attorney negate this factor by showing, at the very least, that the alleged offense was not committed because of another’s race, gender, or other discriminatory factor.
School Disciplinary Hearing Procedures
Reporting
The obvious trigger to a school disciplinary process is a report made by a student or even parent who claims that one of the above-offenses was committed. In order to assure due process, most schools have put into place a Title IX coordinator to receive these complaints and make sure there’s an accessible way for any individual to report behavior that they consider to be discriminatory and set up avenues for the Title IX grievance process.
Investigation
When an incident is reported, it will usually be followed by an investigation. This will typically involve interviewing suspects, collecting witness statements, gathering evidence, and preparing for a potential hearing.
For an accused individual, this is an incredibly important phase whereby it is crucial that he or she have an attorney on deck to conduct a counter-investigation. These steps include gathering witness statements and collecting and organizing electronic evidence such as text messages, social media data, and the like. Preserving this type of evidence can be crucial at a hearing because school investigators are not under the same obligation that prosecutors are – to collect and turn over any and all discovery, even exculpatory. Therefore, your attorney plays a key role in helping to conduct an independent investigation and preserve any evidence which is uncovered.
Tribunal, Trial, Appeals
When an investigation is completed, a tribunal will be carried out before a “neutral” panel. There is much debate concerning what constitutes a neutral panel – indeed, oftentimes the panel is made up of board members at a school or senior professors – these individuals likely have a vested interest in the institution and may have difficulty discerning the facts with a clear lens.
Unfortunately, hearing procedures vary from school to school which make it difficult to assure one standardized form of due process for an accused. Rules differ in terms of the extent of “cross-examination” your lawyer can conduct as well as an accused’s opportunity to provide a statement or testimony.
Even if a finding is made against the accused, most schools have put into place an appellate process to challenge the tribunal’s finding. This process is not only useful for an appeal but to also allow for mitigating information to lessen the potential punishment. This final phase is of the utmost importance – indeed, it may determine whether or not the student is suspended or expelled. Likewise, the “sentencing” phase can also determine what if any substantiated finding will become a part of the student’s permanent records when applying for college or employment.
Handle Title IX Cases with an Experienced Criminal Defense Attorney
Unfortunately, many parents who have kids subject to Title IX school disciplinary hearings overlook a critical reality – these situations can lead to criminal investigations and prosecutions if not handled correctly. Even when handled correctly, sometimes a simultaneous criminal investigation has already begun – and the responses that your child does or does not provide during the school disciplinary process will be critical later on in a criminal court setting. Contact the Law Offices of Jason Goldman to learn more about our strategies to protect and represent you throughout the Title IX investigation and procedure.