Title IX Defense Blog

FACE

FACE is the country’s best-known organization advocating for change in how schools handle sexual assault cases. It is a network of families who have been through the campus sexual misconduct process as well as friends of those families.

FACE is a frequent first stop for families who are going through the trauma of a campus sexual assault charge. If you’re looking for people to talk you through the process and tell you that you’re not crazy—that the process disciplinary process really is that insane—FACE is a wonderful resource run by wonderful people.

The FACE webpage is http://www.facecampusequality.org/.

FOUNDATION FOR INDIVIDUAL RIGHTS IN EDUCATION (FIRE)

FIRE is the nation’s pre-eminent organization working to protect the rights of students. It is active in a number of areas, including due process in campus disciplinary matters.

FIRE’s webpage is https://www.thefire.org/.

Its guide to Due Process on Campus is downloadable from this page:

https://www.thefire.org/fire-guides/.

HANNA STOTLAND

Hanna is a college counselor who has helped a number of students with disciplinary findings with college planning. Her e-mail address is ivyspice@gmail.com.

MARK ZAID

Mark is an attorney who helps people with security clearance issues. His web address is http://www.markzaid.com/.

KAISERDILLON

KaiserDillon has been representing students accused of violating Title IX policies on University campuses since 2010.  We have represented scores of students at dozens of schools all over the country, from Maine to California and from Florida to Alaska. We’ve represented students when they’ve first been given a no-contact order, and we’ve represented them all the way through a victory in court. We were actually the first firm in the country to win one of these lawsuits in the post-2011 era, which we did against George Mason University in 2016.

Our lawyers have written on Title IX and the problems with how schools implement Title IX guidance in national publications including The Wall Street Journal, The Washington Post, The Los Angeles Times, and Time magazine. We’ve taught other lawyers how to do these cases and even given presentations to Title IX coordinators about how to set up a fair process at their schools.

Our lawyers have gone to the best law schools in the country. We have been handling these cases at schools and in court before most lawyers even knew this was a real practice area.

When you choose a lawyer, you want someone who understands that and will climb right in the foxhole with you. That’s what we do at KaiserDillon—we fight for you, and we fight with you.

For more about KaiserDillon’s full range of legal services, visit KaiserDillon.com.

NOTE: Many people who face disciplinary charges on campus are unable to afford legal representation; we hear from such people every week. Because we are a small firm, our resources are limited, but we are committed to helping a limited number of families facing campus disciplinary actions on a pro bono basis every year.  For more information contact us at (202) 640-2850.

 

People accused of sexual assault charges on college campuses generally don’t find any sympathy for their due process rights in the U.S. Department of Education, from their schools, or from public opinion. But the courts are increasingly giving relief to men who have had their rights trampled.

Of course, getting to court is expensive. Sometimes attorneys’ fees are available at the very end of the litigation, but to get to the end of a lawsuit can be an incredibly expensive undertaking.

It’s also an uncertain one. The courts have shown some sympathy, but there are many losses along the way.

Often, when considering a lawsuit, it makes sense to think about what you would settle for. It makes sense to be clear about what you want. If you want a complete exoneration, you will likely have to go the distance—few schools will simply take away a finding or reverse a disciplinary decision without an order from a judge. A modification of the sanction would require the accuser to be notified, and schools fear that if an accuser is told, she’ll then complain to the U.S. Department of Education, which will land the school in trouble. But sometimes, with a good deal of effort, a school will agree to change how the charge is reflected on the student’s transcript or what records would be disclosed to another school in the future.

If you’re interested in a lawsuit, though, here are the basic claims people bring in lawsuits with schools. Keep in mind that this is a very cursory overview. If you have more questions, you should do more research or consult with a lawyer. Most lawyers will require you to hire them before they do a full review of whether you have a lawsuit that is likely to win. We are often hired by people who’ve already gone through the disciplinary process and want us to tell them whether they have a valid legal case against the school.

• TITLE IX

Title IX protects men as well as women from discrimination on the basis of sex in educational opportunities. Courts have been relatively hostile to arguments that because these processes are unfair, and because most of the accused people put through them are men, that must be due to gender bias. In other words, if all you did was lose a swearing contest before a kangaroo court, you probably won’t have a valid Title IX claim.

However, there are two kinds of claims under Title IX that can work:

1. you may have a claim if you can prove that the outcome was erroneous and put forth some actual evidence of gender bias (not just assumptions), or
2. if you can find statements by the school suggesting such bias.

If you win the claim, the school could be forced to pay all or part of your attorneys’ fees.

• BREACH OF CONTRACT

Some states have laws that say that a school’s code of student conduct is a contract between the student and the school. If the school violates its code, that can give rise to a breach of contract lawsuit. Normally, this would happen when the school gives a student a certain process and then simply ignores that part of its code when it holds the hearing. This happens far more often than you would expect; in fact, we rarely see a case in which the school does everything that it’s promised to do.

One tricky aspect to these claims is that you will generally have to prove that any violation from the school’s code was material—that is, that it mattered to the result.

For example, if you sign a contract to have your roof fixed by Thursday and the contractor finishes it on Friday, that’s probably not a material breach of the contract. You got your roof, and absent a hurricane, one day probably didn’t make a difference.

In the same way, if you’re guaranteed a five-minute break between witnesses and you only get a four-minute break, you’d have to show that the extra minute would have mattered. Generally, that means you’d have to show you’d have a decent chance of getting a different result if you’d been given a break of the right length.

So, when you’re thinking about whether you might have a good breach of contract claim, use common sense, and put yourself in the judge’s shoes: if you were the judge, would you really think this violation mattered? Or would you think the plaintiff is being a bit ticky-tacky? Judges tend not to like ticky-tacky.

• DUE PROCESS VIOLATIONS

Public schools are branches of the government. The U.S. Constitution and many state constitutions require schools to give you due process before they punish you. (By contrast, and contrary to what many people think, the U.S. Constitution doesn’t apply to private schools.) Generally speaking, due process means that you must have notice of the charges against you, that the notice must be specific enough so you can defend against the charges, and that you must have a meaningful opportunity to plead your case in front of a neutral decision-maker.

• FREE SPEECH/FIRST AMENDMENT

We are seeing a rise in “intimate partner violence” claims coupled with sexual assault allegations. Basically, many schools believe they should be policing their students’ romantic relationships. So when one person in a romantic relationship says something mean or offensive to his or her partner, schools sometimes charge that as a separate violation.

Leaving aside that this is an insane policy, it may also violate the First Amendment in some cases. If you have been found responsible and punished for saying things to your girlfriend, you may have a viable claim under the First Amendment.

• ADMINISTRATIVE MANDAMUS

State schools are branches of state governments. Many state governments set up a process to challenge, in state court, a state government decision. The rules can be a little complex, and they depend a lot on the laws of the specific state at issue, but they frequently allow for a challenge to a decision because it was not based on “substantial evidence.” Again, the details of what that means and how it’s been interpreted vary significantly from state to state. An experienced lawyer should be able to tell you whether administrative mandamus is available to you.

The consequences of being found responsible are dramatic. First, it will disrupt the current semester and derail your immediate plans. Second, it will radically alter the course of your future. We are constantly surprised when our clients tell us that they can’t prepare for a hearing that may decide whether they are expelled because they have to study for a test. The hearing matters a whole lot more than the test. These cases can destroy your educational future. A bad test result might set you back a little in class. You should recognize that and act accordingly.

Generally, we see two punishments for campus sexual assault: suspension and expulsion. We are starting to see suspension much less frequently as schools crack down more aggressively on sexual assault on campus.

• SUSPENSION

With a suspension, there are three big concerns:

1. What will the gap in your educational history look like?
2. What will your transcript say?
3. What educational records will be given to any school you decide to transfer to?

With each of these issues, we tend to look at the sanction with an eye toward how it will affect our client’s future. Of course, that depends on what kind of future you want. If your life’s goal is to earn a PhD or, worse yet, to become a lawyer, then a suspension could be a big deal. It will likely affect your ability to get into another school later, and it will come up if you apply to be a member of the bar so you can practice law. Similarly, if you want to do work that requires a security clearance or if you want to work in another highly regulated industry, there may be more questions about what happened.

We advise all of our clients to tell the truth to any future school or employer if they’re asked about their disciplinary history. It’s the right thing to do, and the consequences of lying can be much worse than what happens if you’re honest upfront. (We know of a case in which the accused lied about his reason for transferring to a new school, only to be expelled from that school a few months later when his accuser wrote the school a letter asking whether it knew about his sexual misconduct finding.) That said, if there is a way to be honest and avoid disclosing what happened, that can be a viable approach. This won’t work if there’s a question on a later application about whether you’ve been found responsible for a sexual assault, but if you aren’t asked that question, you likely have no obligation to voluntarily disclose it.

Many students have gaps in their time in college. They have these for many reasons: a medical emergency, a family situation, a valuable life experience, or an employment opportunity. If you are suspended, you will be much better off trying to find something else to do during your suspension. Get an internship. Volunteer to help the poor. Do something that you can talk about later as an example of why you are a good, contributing member of society. Sitting in your parents’ basement playing Xbox for a year, no matter how appealing that might seem at the time, isn’t likely to advance the ball for you.

Be particularly aware of how your transcript reflects your suspension. Some schools simply don’t disclose the suspension; it’s as though it never happened, aside from the gap in your academic record.

Find out how the school will note a suspension on your transcript. It’s a crucial part of what employers and other schools will see.

If you apply to go to another school, that school will very likely ask you to release your rights to keep your educational records private and ask you to execute a FERPA release. You can refuse, but often that refusal will be the end of your application. In the same way that you can’t get life insurance without letting the insurance company see all of your medical records, no school we’re aware of will consider your application without seeing your educational records.

This means you need to be very clear with the school about what educational records it will release when it gets a request from a school you’re applying to. Will the requesting school get only the finding or also the investigative report? Will it see any other raw materials from the case? These are things it is very helpful to know.

EXPULSION

If you have been expelled, you still have the same concerns that someone who has been suspended has about what’s on your transcript and what educational records the school has.

You will need to apply to a new school to get your undergraduate degree. Virtually every school will want to know about your expulsion, and virtually every school you apply to will learn—either through a question on the Common Application, through a note on your transcript, or through a FERPA release—that you were expelled.

Often, your transfer application will have to talk about why you were expelled. If the educational records that are released are minimal—such as information about the finding but not the raw materials that went with it—then you can control what information the school has and you can control the narrative. If, by contrast, what’s released includes every single one of the emotionally charged documents in the case, the narrative will be much harder to control.

It used to be that when a person was charged with a sexual assault on campus, the student could simply transfer, and the investigation and process would stop. For most schools, those days are over. However, it still makes sense to ask. This can be a complicated tactical question.

If the school is going to continue the investigation and you transfer, it will likely find you responsible in your absence. You won’t be there to defend yourself, and every inference will simply be drawn against you. Many schools would then send notice of your later disciplinary action to a school where you have applied or transferred. Simply put, that finding can haunt you later, so make sure you find out what will happen if you transfer before you decide to go through that process.