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Practical Advice for the Defense of a Title IX or Campus Sexual Assault Proceeding

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How to Appeal a Disciplinary Sanction from Your School

If you lose your hearing and are sanctioned, just about every school gives you the right to an appeal. Generally, you are given very narrow grounds on which to appeal. You’re also normally only given a matter of days to file an appeal. Some schools even impose a page count on how long an appeal can be. In short, they don’t make it easy.

When we, as lawyers, ghostwrite an appeal for a client, sometimes we use it to show how we would sue the school later: the appeal is long on case citations and legal threats. Obviously, if you’re doing an appeal without the help of a lawyer, you are less likely to do that.

If you’re working without a lawyer, the first thing you should do is sit down with the school’s code of conduct and make sure you understand the specific bases it outlines for an appeal. If you can only argue that there was a procedural defect or that the sanction was excessive, and you argue that the decision was wrong even though the process was basically fair and consistent with the school’s rules, you give the school a very easy basis to dismiss your appeal. So make sure the arguments in your appeal fit within the categories that the school outlines for an appeal.

Here are some of the common grounds on which schools will let you appeal.

Substantial Evidence

Some schools allow you to appeal because the decision wasn’t supported by substantial evidence. If yours is one of them, you can make a broader attack on why the decision was wrong. But note that you generally need to say more than just this: “The panel believed my accuser, not me, and that shouldn’t be enough to find me responsible.”

But it is—in courtrooms across the country every day, people are convicted on nothing more than “he said, she said” evidence. So do your best to go beyond the mere fact that you lost a swearing contest—what other evidence undermines the finding? Be as specific as possible, and try to explain why no reasonable panel could have found against you given that evidence.

Procedural Defect

Almost all schools will let you appeal if you can show there was a problem with the process in the hearing. Generally, school codes say that these are limited to arguments that the process was substantially flawed—so you can’t make ticky-tacky arguments.

There are generally two kinds of arguments to make here.

1. The School Didn’t Follow Its Own Policies

For example, if the school’s code says that you have a right to question your accuser by posing questions through a hearing officer but the hearing officer refused to ask most or all of your questions, that can be a strong argument, especially if you can articulate why asking those questions would have made a difference. Or if the code says you have a right to call witnesses, but the hearing panel refused to hear from your witnesses, that could be another productive ground for appeal.

2. The Schools Actions Are Unfair

Things may happen in the hearing that don’t technically violate the code but that are simply unfair. If new charges are brought against you the night before the hearing, but the code doesn’t say anything either way about that, you can argue that it would simply be unfair to force you to defend an allegation that you had no knowledge of the morning before the hearing. (At a public school, you’d also have a due process right to more notice than that.)

The bottom line is that when you’re identifying a procedural defect, be as specific as possible about what went wrong.

New Evidence

Most schools will let you appeal if you have new evidence that you couldn’t have put on in the initial hearing. This evidence has to be pretty important, and it has to be evidence that you couldn’t have presented in the hearing for some reason.

We’ve seen schools construe the “not available before the hearing” part of this test very strictly. They take the position that if there is any argument that you could have found the evidence earlier, then you’re simply out of luck.

This can be a difficult standard to meet, which is why your prehearing investigation should be thorough. However, if there is new evidence that you simply couldn’t have known before the hearing, this can be powerful.

Excessive Sanction

Especially in a marginal case that didn’t involve sexual intercourse, arguing that your sanction was excessive can be a very strong argument. We’ve seen cases where our clients are punished with an expulsion for relatively minor touching—say, in the course of making out, the client touches the accuser’s bottom or breasts, is told to stop, and does so immediately. In a case like that, an excessive sanction argument is often particularly forceful.

When arguing that a sanction was too harsh, make sure you tell the school how the excessive punishment will unjustly affect you: whether you will lose a scholarship, lose a job you’ve already accepted, and so on. It may not care, but it can’t hurt you to argue the point.

If you lose your hearing and are sanctioned, just about every school gives you the right to an appeal. Generally, you are given very narrow grounds on which to appeal. You’re also normally only given a matter of days to file an appeal. Some schools even impose a page count on how long an appeal…

How to Prepare for a Disciplinary Hearing at Your School

If your school gives you a hearing, how you prepare for that hearing will be incredibly important. A number of things will happen at the hearing. Thinking about each thing well in advance is essential.

Frankly, what the school is expecting of you is unreasonable. You are being asked to be your own lawyer against a system that is unfair and stacked against you. This may be the one place where what the school says about its process is undeniably true: it is intended to be an educational process. The problem is that what you learn is that the school is not a very fair place.

Here are the key things to think through as you represent yourself in a disciplinary hearing.

Demeanor

First, think clearly about what your demeanor at the hearing will be. As we discuss in other places in this book, the dynamics of these hearings are incredibly challenging.

Your accuser will usually come in full of emotion. It may feel as if the oxygen has just been taken out of the room after her testimony. Just about everyone there with the slightest amount of humanity in them will want to react emotionally and try to offer support.

If you aren’t prepared for that, you will likely get angry, because being accused of a horrible crime that you didn’t commit is maddening. If you give in to that impulse and become angry, then you’re playing into a regrettable emotional template—she’s a rape victim who is wounded, and you are the angry aggressor who is attacking her . Perhaps a very lawyerly hearing panel would look at the facts in a neutral way after that, but those panels are few and far between.

So do not, as Yoda taught us long ago, give in to your anger.

Your Statement

Practice what you have to say in a way that doesn’t show anger. To the extent that you can, try to show empathy toward your accuser. In our experience, the vast majority of accusers are not intentionally lying; rather, for complicated reasons that are beyond the scope of this book, they have come to convince themselves of something that simply isn’t true. That’s a terrible thing for you, but it’s not the same thing as lying. Try to keep that possibility in mind.

If there is any part of that night that you regret, and you can show regret without saying that you’re responsible for a sexual assault, that may be a good thing to do. It’s better to accept responsibility for something small to show that you’re human and that all of this is affecting you. If you were drunk, accept that and say you regret being drunk. If you treated your accuser disrespectfully, say that and apologize for it. Admitting your mistakes isn’t the same thing as admitting to sexual assault; try to be aware of that.

It’s also OK to show how these charges have affected you. You can talk about the stress they have caused you and your loved ones or how they have affected your schoolwork or some other aspect of your life. But, as best you can, try to articulate these things without getting angry.

Discussing the Evidence

Often there is evidence that you will need to talk about, such as text messages, a diagram of an important location, or some other electronic record that’s relevant to what happened.

Do not just hand the documents to the panel and assume that they will read them. You have absolutely no guarantee that they will. Instead, work a discussion of that evidence into your statement. If you have text messages that show something important, say what they show, then pull up the text messages, make sure everyone has a copy of them, read them to the panel, and say again how they show what you’re saying. (In short: tell them what you’re going to tell them, tell them, and then tell them what you told them.) They’ll leave a bigger and better impression than if you just toss the evidence over to them at the end of the hearing.

You don’t want to be in a position where, after the hearing, the panel has ignored a big part of the evidence. Sometimes a panel ignores evidence because you yourself ignored it in your presentation. Everyone is busy; help the panel members help you by telling them what to focus on. If it’s important, make sure the panel knows that.

Character Witnesses

Many schools let you put on character witnesses. You could certainly use a professor who thinks you’re a good student, which isn’t nothing, but we tend to think your better witnesses are women who like you—those who can talk about how you treat them and how they’ve seen you treat other women. For example, if you have female friends who can talk about times that you walked them home from a party and looked out for them after a night of too much drinking or about how they walked in Take Back the Night with you, that can mean a lot more than telling the panel that you were an Eagle Scout.

If your school gives you a hearing, how you prepare for that hearing will be incredibly important. A number of things will happen at the hearing. Thinking about each thing well in advance is essential. Frankly, what the school is expecting of you is unreasonable. You are being asked to be your own lawyer against…

How To Cope with the Emotional Stress of Campus Disciplinary Allegations

No one thinks, “I have a mental health problem, so I need to hire a lawyer.” Yet, much of the time, lawyers wind up serving this function. In general, lawyers are bad, expensive therapists. We bill by the hour and are often better at arguing than empathizing. But we’ve seen enough students and families in crisis as a result of these cases to have thoughts about the mental health implications of these kinds of allegations.

If you have just received a sexual assault charge, calling a mental health professional is likely not high on your list. You’ll read this manual, maybe call a lawyer, and start preparing to attack the situation. If you’re likely to skip any section in this book, we’d wager it’s this one.

We think that’s a mistake.

Why You Should Seek Help

In the vast majority of cases—just about every case we’ve seen—you can find a few extra hours to talk to a mental health professional.

If you have any prior involvement with a therapist, now is the time to renew that relationship. If that prior therapist isn’t available for whatever reason, find a new one. (In the next section, we’ll talk about whether you should use an on-campus therapist.)

Being accused of sexual assault is tremendously stressful. It is one of the worst things that can happen to a student. Recognize that and respond to it. Don’t tell yourself that you will just tough it out.

We also see that these cases have a tremendous impact on the families of students who are charged. They can pull you apart, or they can make you stronger. If you are not communicating well because of this charge, recognize that and deal with it in a straightforward way. Get help as a family. Get help as individuals.

Now is the time to make your best decisions. Get clarity on what is motivating you and why.

On-Campus Resources

Every school has a counseling center available to students. School administrators will suggest that you go visit it if you’re having any stress related to the charges against you. (How nice of them.)

Many of our clients think that the school’s counselors are on the school’s side and not on theirs. We’ve found good reason to support that. Schools will tell you that an adviser at a hearing, which we discuss in chapter 8 of this book, is there only for emotional support. Yet we’ve often seen people from the school’s counseling center made available as advisers only for the accuser, not the accused.

In general, the confidentiality rules for counselors should apply to a school’s counselors, though asking in advance may be prudent. The bigger issue with using a school’s counselors is whether they will be there for you later. A school’s counselor may bail on you if you ask him or her to be an adviser at a hearing. And you may lose access to that person if an interim restriction keeps you off campus. If you’re found responsible and required to leave campus, you would very likely lose access to the counselor who has been helping you through the process.

A college’s support services can be invaluable, of course. Its counselors can normally see a person quickly and can be significantly more affordable than someone off campus. Getting in to see a counselor for the school may be better than not seeing anyone, but there are downsides that you should be aware of.

Distinguishing Between Emotional Decisions and Tactical Ones

We’ve all had the experience of writing an angry letter or e-mail, sending it, feeling really good about having sent it, and then regretting it ten minutes later. Be sure not to do that in this process.

For every interaction with the school, pause and think about whether you’re doing something because it would feel good to do that or because it gets you a tactical advantage in the disciplinary case. One of the reasons it’s helpful to hire a lawyer is that, because we’re not the ones being accused of rape, it’s easier for us to separate what is emotionally satisfying from what is tactically wise. But if you’re not in a position to hire a lawyer, you’re going to have to find a way to do that yourself.

For example, if you’re asking for a modification of interim restrictions, it is appropriate to let the school know that what it is doing negatively affects your life. Be specific, and put it in writing. How is it making you feel? Is it affecting your class schedule? Your grades? Your extracurricular activities? Your friendships? These are important questions to address. But attacking the motives of the people who put the restrictions in place will just undermine your credibility.

Similarly, there is a horrible dynamic in many cases, which we talk about in other places in this book, where the accuser looks sympathetic and appears to need protection while the accused seems angry and aggressive. Writing a strong letter attacking your accuser’s character or motivations feeds into this dynamic. Unless there’s a good strategic reason for making that kind of statement, the better decision is not to, no matter how good it might feel.

No one thinks, “I have a mental health problem, so I need to hire a lawyer.” Yet, much of the time, lawyers wind up serving this function. In general, lawyers are bad, expensive therapists. We bill by the hour and are often better at arguing than empathizing. But we’ve seen enough students and families in…

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