What Limits are There to Due Process in Title IX?
Title IX may appear to be a balanced framework of regulations that allows ample room for a respondent to fight allegations and seek support, but it has concerning limitations. Every right granted to the respondent needs to be recognized and utilized to its full extent. An experienced attorney will know what is the most effective way to counter the obvious imbalances in the Title IX processes. They will also be able to hold schools accountable for following procedure to the letter, and not let them try to adopt school policies over Title IX policies when investigating a case.
All Title IX investigations are subject to the following Department of Education’s Office of Civil Rights established factors:
Low Standard of Proof:
Unlike the “beyond a reasonable doubt” of proof used in the criminal courts, a respondent in Title IX proceedings is held to the “preponderance of the evidence” standard. This standard is significantly lower and means that the respondent can be found guilty if the evidence against them is more than 50% likely to be true. It is even lower than the civil court’s “clear and convincing” standard. Because Title IX standards are so low, it makes it very challenging for a respondent to prove their innocence.
Mediation between respondent & complainant is not recommended:
Sometimes mediation is used in other college disciplinary cases, but it is not recommended in Title IX proceedings. If it is allowed, it will always be the complainant’s decision. The complainant can also abandon the mediation process at any time and pursue formal Title IX actions.
Witness cross-examination is not recommended:
The Department of Education’s Office of Civil Rights does not recommend cross-examination of the witnesses, even though this is an indispensable asset to the criminal justice system. Normally a witness will undergo questioning by attorneys of both sides of the case. While one attorney will be trying to prove their case, the other will be trying to get information to disprove it. When a witness has been cross-examined like this, it increases the chance that the full truth is coming out and that the fact-finder (judge or jury) can accurately determine what happened and who is responsible.Because cross-examination is not recommended in Title IX proceedings, the effectiveness of finding the truth is diminished greatly. Colleges and Universities will typically address this by allowing both parties to formulate questions for the witness, then have a intermediary ask the questions. The intermediary has the discretion to ask or reject any question. The questions can also be misinterpreted or stated wrong because a third party is involved. Because of this, respondents are at a significant disadvantage of proving their case through witness testimony.
Criminal Investigations will typically not stop or delay Title IX processes:
Most Title IX violations are serious enough that colleges will recommend that the complainant report the incident to the police. This means that the respondent will be fighting both Title IX allegations and a criminal conviction, but the Title IX proceedings won’t wait for the criminal proceedings to be decided. Even if a respondent isn’t initially reported to law enforcement, they must be very careful when they speak to their school during the Title IX hearings. They can be charged criminally later.
Even though the respondent may feel trapped and that it would be better to exercise their right to remain out of the Title IX process and not say anything, it is not recommended to do so. The Title IX proceeding gives the respondent an opportunity to present their witnesses, evidence, and their version of the events. Otherwise, the school will proceed with the investigation and decide sanctions on its own. Sometimes, students can temporarily withdraw from their school pending the final outcome of their criminal case. It is important to speak with an attorney and decide what is the best course of action for you and your unique situation.
Respondent & complainant have equal rights and equal limitations:
The way Title IX is written, it seems to be very fair to both the respondent and complainant. If one can present witnesses, so can the other. This goes for adding comments, supplying evidence, appealing and more. Students can get a false sense of security if they are unfamiliar with the Title IX process because they will believe that both parties are treated equally. Unfortunately, the practice of giving both parties the same opportunities can work to the respondent’s disadvantage.
One of the biggest examples of this disadvantage is the right to appeal. If a respondent is granted an appeal, and proves their innocence, the fight is not over. The claimant has the same right to appeal and gets another chance at a “double jeopardy” type scenario, where a respondent can be proven guilty once again. Though equal rights may seem fair, it is much more complicated when put into practice.