Title IX Defense Blog

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

rawpixel-589073-unsplash

Choosing an Adviser for Campus Disciplinary Proceedings

You have the right to have an “adviser of your choice” with you in a campus disciplinary proceeding. Of course, that adviser can be a lawyer, which is what we recommend if you are able to afford one. If not, choose your adviser carefully. Your adviser can make a big difference in your case.

In general, for most schools where the adviser has to sit mute, you want someone who meets the following criteria:

  • a person you will be comfortable with,
  • a person who can talk to you intelligently about what’s happening in the hearing and how to respond,
  • a person who will take good notes about what happened in the hearing in case that becomes useful later,
  • a person who will be able to critically evaluate what’s going on in the hearing and not sugarcoat things, and
  • a person who is unfailingly on your side.

As you might imagine, these people can be hard to find. We suggest that you make a list of all people who could serve as an adviser, think through how they’d rank using the above factors, then choose among them.

In almost every case, the school will either give you a list of advisers or will tell you it can give you one if you’d like one. Many people have a knee-jerk reaction that these folks are stooges who are there only to help the school. Unfortunately, that may often be true. But if you don’t have a lawyer helping you with this process, it is probably worthwhile to at least interview a few of the school’s proposed advisers. There are good people of conscience everywhere. It may be that the people at the school who are volunteering for this duty are doing it because they believe students should have a fair process.

Here’s what to look for:

  • INDEPENDENCE

You want to make sure that the person you choose is not overly beholden to the school. Professors with tenure may not care about what the school thinks about them, while an untenured professor or low-ranking administrator keen on promotion might feel differently. You should obviously avoid anyone who reports, directly or indirectly, to anyone else in the disciplinary process.

  • CONFIDENTIALITY

When you interview potential advisers, ask whether they will keep what you say confidential. If you hire a lawyer or a counselor, you should get that. The adviser’s role is most closely related to those two roles, and you should get the same duty of confidentiality there. If the person gives you the willies on this score, think about asking whether he or she would be willing to sign a confidentiality agreement.

  • ON YOUR SIDE

You absolutely need someone who is on your side. Ask the potential advisers explicitly about that. You’re going into a foxhole with this person, so you need to make sure they have your back.

  • SMART

You don’t want to bring someone with you who isn’t able to think through the process with you. By talking to the prospects and learning a little about them, you can probably tell whether they’re smart enough to give you good advice about a complex proceeding.

  • KNOWLEDGEABLE

People who have been through this before with other students can be a real asset. Ask about their prior experience with the disciplinary process. If they’ve just had a two-hour training, that’s a reason to be less enthusiastic than if they’ve done this many times in the past.

  • KNOWN TO THOSE INVOLVED IN THE PROCESS

We all make subtle decisions about credibility based on how well we know people. If you can find an adviser who truly has your back and who has a positive relationship with the members of the hearing panel, that can be tremendously valuable. If someone sees your adviser picking her kids up every day at the same preschool and then sees her sitting next to you at the hearing, he or she may subconsciously think of you as a more credible and likable person.

A lawyer can be an obvious choice for an adviser—and federal law now allows lawyers to serve as advisers. As you might imagine, we strongly believe that people who can afford to have a lawyer represent them at their hearing should hire one. Time and again, clients and their families have told us that if we hadn’t been there, they don’t know what they would have done.

Having a lawyer as an adviser has many advantages. We tend to be good at thinking through how to present evidence and how to question witnesses. If things go truly off the rails, we can object and try to change things. For example, an accuser once tried to qualify the supposedly neutral investigator (a campus police officer) as an “expert” in whether someone is telling the truth, based on his “years of experience investigating crimes.” If we hadn’t loudly objected and demanded to call the school’s attorney to put a stop to that kind of nonsense, the evidence would have been allowed. Instead, the school’s attorney took our side and told the Title IX coordinator not to allow the testimony.

Having a parent serve as your adviser is generally not a good idea. A hearing is an incredibly stressful time for everyone—especially the student who has to defend himself. Regrettably, parents can sometimes increase stress rather than reduce it—not because they mean to, but because there is nothing more stressful to parents than watching their child suffer. There may be exceptions to this general rule, perhaps when the parent is also a lawyer who has experience as an advocate. But in general, we recommend that parents not act as a student’s formal adviser.

Of course, there are others who may fit the bill: perhaps a coach or a professor at the school who is not on the school’s list or a good friend of the family. Really, any person who meets the criteria above can be a good candidate for an adviser.

SIGN UP TO RECEIVE UPDATES