Minneapolis Title IX Advocacy

Protections for Accused Students

Under the old guidance, schools were enforcing a standard of preponderance of the evidence to hold an accused student responsible for misconduct. This standard required only that it was more likely than not that misconduct occurred. Accused students were being found responsible and having life changing consequences based on poor investigations and low standards of proof. The final regulations now will allow schools to choose their standard of evidence between preponderance of the evidence or clear and convincing. Whichever standard a school chooses, it must be the same for both employee and student misconduct claims.

Advisors have long been calling for changes that accused students were not being afford, and would benefit all parties in the process. For example, accused students will now be entitled to receive written notice of the allegations against them and be informed of their right to have an advisor which maybe an attorney. Further, accused students will be entitled to access all evidence against them whether it is helpful or hurtful to their case. Moreover, accused students will now be presumed innocent placing the burden on the school to seek the truth by collecting evidence through the investigation process. Additionally, postsecondary schools will now be required to hold live hearings where both parties are allowed cross examination through their advisors. 

Summary of the Grievance Process Requirements

There are ten groups of provisions under the federal rule that together are intended to provide a standardized framework that governs school’s responses to formal complaints of sexual harassment under Title IX. Generally, the provisions state:

•  Acknowledges a school’s treatment of a complainant, or a respondent, could constitute sex discrimination prohibited under Title IX.
•  Schools are required to adopt a grievance process that:
  • treats complainants and respondents equitably by recognizing the need for complainants to receive remedies where a respondent is determined responsible and for respondents to face disciplinary sanctions only after a fair process determines responsibility;
  • objectively evaluates all relevant evidence both inculpatory and exculpatory, and ensures that rules voluntarily adopted by a recipient treat the parties equally;
  • requires Title IX Coordinators, investigators, decision-makers, and persons who facilitate informal resolutions to be free from conflicts of interest and bias and trained to serve impartially without prejudging the facts at issue;
  • presumes the non-responsibility of respondents until conclusion of the grievance process;
  • includes reasonably prompt time frames for the grievance process;
  • informs all parties of critical information about the recipient’s procedures including the range of remedies and disciplinary sanctions a recipient may impose, the standard of evidence applied by the recipient to all formal complaints of sexual harassment under Title IX (which must be either the preponderance of the evidence standard, or the clear and convincing evidence standard), the recipient’s appeal procedures, and the range of supportive measures available to both parties; and
  • protects any legally recognized privilege from being pierced during a grievance process.
• Requires written notice of the allegations to both parties, including informing the parties of the right to select an advisor of choice.
• Require schools to investigate formal complaints, describe when a formal complaint is subject to mandatory or discretionary dismissal, require the recipient to notify the parties of any dismissal, and authorize discretionary consolidation of formal complaints when allegations of sexual harassment arise out of the same facts or circumstances.
• Requires schools to investigate formal complaints in a manner that:
  • keeps the burden of proof and burden of gathering evidence on the recipient while protecting every party’s right to consent to the use of the party’s own medical, psychological, and similar treatment records;
  • provides the parties equal opportunity to present fact and expert witnesses and other inculpatory and exculpatory evidence;
  • does not restrict the parties from discussing the allegations or gathering evidence;
  • gives the parties equal opportunity to select an advisor of the party’s choice (who may be, but does not need to be, an attorney);
  • requires written notice when a party’s participation is invited or expected for an interview, meeting, or hearing;
  • provides both parties equal opportunity to review and respond to the evidence gathered during the investigation; and
  • sends both parties the recipient’s investigative report summarizing the relevant evidence, prior to reaching a determination regarding responsibility.
• Requires a live hearing with cross-examination conducted by the parties’ advisors at postsecondary institutions, while making hearings optional for elementary and secondary schools (and other recipients that are not postsecondary institutions) so long as the parties have equal opportunity to submit written questions for the other parties and witnesses to answer before a determination regarding responsibility is reached.
• Requires a decision-maker who is not the same person as the Title IX Coordinator or the investigator to reach a determination regarding responsibility by applying the standard of evidence the recipient has designated in the recipient’s grievance process for use in all formal complaints of sexual harassment (which must be either the preponderance of the evidence standard or the clear and convincing evidence standard), and the recipient must simultaneously send the parties a written determination explaining the reasons for the outcome.
• Requires schools to offer appeals equally to both parties, on the bases that procedural deficiencies, newly discovered evidence, or bias or conflict of interest affected the outcome.
• Allows schools to offer and facilitate informal resolution processes, within certain parameters to ensure such informal resolution only occurs with the voluntary, written consent of both parties; informal resolution is not permitted to resolve allegations that an employee sexually harassed a student.
• Requires schools to maintain records and documentation concerning sexual harassment reports, formal complaints, investigations, and adjudications; and to publish materials used for training Title IX Coordinators, investigators, decision-makers, and persons who facilitate informal resolutions on the recipient’s website or make these materials available upon request for inspection by members of the public.

Do I Have the Right to an Attorney in Title IX Claims?

While the rules governing a student’s right to an attorney can vary from state-to-state, alleged victims may be permitted to have legal counsel whenever the alleged perpetrator is also allowed to hire outside counsel for a Title IX defense. Additionally, some organizations may benefit from dedicated legal counsel when pursuing a Title IX investigation or determining how to resolve a given situation. At Tamburino Law Group, our experienced Minneapolis attorneys can offer expertise to both individuals and organizations during Title IX proceedings. With over 100 years of combined experience in the courtroom, we can serve as effective advocates for your needs.

To explore your legal options, call (612) 444-5020today. For more information on Title IX, visit our FAQ page.