Title IX Defense Blog

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.

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