Update to this post: In 2019, the California Court of Appeals ruled that where students are accused of sexual violence and face suspension or expulsion, the college or university must allow the accused student to directly or indirectly cross-examine the accuser and any witness whose credibility is at issue in the case. This is a substantial change from the procedures that many colleges in California and throughout the United States have implemented, and has required colleges in California to re-design their grievance procedures to allow for this questioning. These new procedures are still vastly different from courtroom proceedings under civil and criminal laws. For example, at most colleges, all questions are submitted to an official presiding over the hearing, who has the power to approve or disapprove each question before it is asked. Also, at some schools, such as the University of California, an investigator still decides whether or not the accused student is responsible for the alleged policy violation before the hearing is held. In this system, the accused student is only allowed to question the accuser and other witnesses during an appeal.
Many Sexual Violence and Sexual Harassment accusations, such as rape, sex with an intoxicated person, sexual assault, and stalking, are also potential criminal charges or could be grounds for a Domestic Violence Restraining Order or a lawsuit. A complainant in a Title IX matter may also report the same matter to the police as criminal conduct. Your school’s Title IX Sexual Harassment and Sexual Violence Grievance Process is an administrative procedure, and follows a different structure than traditional legal models.
Your advisor must have extensive experience with school grievance processes. These procedures are significantly different from the processes used in court proceedings. Your advisor must understand these differences to provide you with strategic guidance that will help you to present your case effectively and win. In situations where there is a simultaneous police investigation, restraining order case, or criminal or civil court proceeding, I use my experience with educational, administrative, criminal, and civil rules and procedures in order to assist my advisee with an effective and comprehensive strategy.
The U.S. Department of Education requires schools and universities to investigate Sexual Violence and Sexual Harassment accusations independently from the police. According to guidance from the Department of Education Office of Civil Rights, “the school’s Title IX investigation is different from any law enforcement investigation, and a law enforcement investigation does not relieve the school of its independent Title IX obligation to investigate the conduct.” An accused student could be simultaneously facing a police investigation of potential criminal conduct and a disciplinary grievance investigation by the school or university at the same time.
There is no “Evidence Code” for Title IX investigations. Rules of evidence used in your state court system, such as the Hearsay rule, authentication procedures, right to remain silent, and other rules do not apply in Title IX Sexual Violence Grievance Procedures. Instead, your college has discretion to make its own determination of the acceptability and reliability of evidence. This statement in the Claremont McKenna College Civil Rights Handbook is an accurate expression of the rule followed by most colleges:
“While these Formal Grievance Procedures are not governed by civil or criminal rules of evidence, it should include only information that is relevant, non-repetitive and the sort of information a reasonable person would find reliable.”
This means that both students may be able to present evidence that is not typically used in court, such as friends’ recollections of past conversations, or records showing that police declined to make an arrest, and may be prevented from using certain evidence, such as formal discovery processes, that would be allowed in a criminal or civil court case.
There is no formal discovery process or subpoena power in a Title IX Grievance. Unlike a civil or criminal court case, there is no means to subpoena documents, require attendance of witnesses, depose witnesses or parties, submit written interrogatories or requests for admission, or to cross examine parties or witnesses. Every person’s participation is voluntary, including the complaining student and the respondent. A college can continue to pursue the accusation on behalf of a complaining student who has left the college or who has declined to continue participating. A respondent student may also choose not to participate, but the process will continue.
The school’s investigator will speak to the parties and witnesses who are willing to participate. Both parties will be allowed to see the information that the investigator collected and relied upon to reach conclusions. According to guidance issued by the Office of Civil Rights, the parties must have an equal opportunity to present relevant witnesses and other evidence. The complainant and the alleged perpetrator must be afforded similar and timely access to any information that will be used at the hearing.
In many states, there is no right to have an adversarial hearing where witnesses and parties are questioned. In a criminal or civil court, each party has the right to a trial before a judge or a jury to decide the outcome of the case. At such a trial, each party has the right to make arguments, testify, present evidence and witnesses, and question the other party and all of the witnesses.
Many colleges have no formal courtroom-like hearing at all. Usually, an investigator, either employed by the college or hired from an independent private investigation or law firm, interviews the parties and witnesses and reviews the evidence provided by each side. The investigator analyzes the party and witness statements and evidence, and arrives at conclusions as to whether or not relevant facts were established, and whether or not the accusations should be sustained by the preponderance of the evidence. At a few colleges, after this report is issued, the school conducts a formal hearing, but this is not universal.
At some colleges, this report is the end of the process. After reviewing the report, an official of the college determines if any violations were found to be true and imposes a sanction. Some colleges allow for a hearing as an appeal of the report and findings. This hearing could take many different structures. There may be a hearing panel that listens to testimony and questions witnesses. The students may be allowed to submit questions for the panel to ask the witnesses and parties, which the panel has the discretion to ask, modify, or decline to ask. At other colleges, the hearing consists entirely of a review of the investigator’s report and submissions by the two parties, without any confrontation or questioning.
There is no right to “confront” the accuser or the witnesses. The Office of Civil Rights discourages schools from allowing any questioning or cross-examination of witnesses or parties. Your school may permit you to submit written questions to the investigator, who has the discretion to ask the questions to the other party, or the witnesses. If your school’s process includes a formal courtroom-like hearing, the process may provide for a means to submit questions to the other party, but it is not likely that you or your advisor will be allowed to directly ask the questions.
There may be no appeal allowed, or you may be required to show good cause before you may present an appeal. Generally, in a court proceeding, there is always a right to appeal the outcome. In a criminal case, the initial request for an appeal generally does not need to state any specific reason to challenge the finding of guilt or the sentence. Many colleges refer to the process as a “request for an appeal,” and require the student to substantiate specific grounds for requesting the appeal. Usually, these grounds are limited to narrow categories, such as newly discovered evidence or failure to follow the school’s procedures. Dissatisfaction with the result of the investigation is usually not a permitted reason for appeal.
Usually, an officer of the college reviews the “request for appeal,” to decide whether or not the appeal will be allowed at all. The response to the request could be to reject the request entirely, to modify the findings in the report, or possibly to conduct further investigation or a hearing.
Your Advisor’s experience with many different college grievance procedures is essential in making sure that you have access to whatever appeals or other remedies exist in your process. If you must establish grounds for appeal before you can even appeal at all, your Advisor needs to be familiar with the grounds of appeal allowed, with the college’s grievance process, and with the laws and regulations that govern the college’s grievance process. If your grounds of appeal are limited to showing that the college failed to follow the law or its own processes, it is essential that you and your advisor fully understand those processes, so that you can demonstrate that they were not followed.
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