When there is an allegation of sexual assault or sexual misconduct on campus, schools are obligated to meet certain requirements under Title IX of the Civil Rights Act. Title IX prohibits sex discrimination in educational institutions that receive federal funding (which includes private colleges since students receive financial aid) and it has been interpreted to cover sexual harassment and sexual violence. Under Title IX, schools are legally required to respond and remedy hostile educational environments and failure to do so puts a school at risk of losing its federal funding.
In 2011 the Department of Education sent out a much-publicized Guidance Letter to schools that discussed the obligations schools have to address on-campus sexual assault. The Letter focused on how sexual harassment and violence creates a hostile educational environment in violation of Title IX when it is serious enough to interfere with a student’s ability to learn or participate in educational or extracurricular activities. For the purposes of a Department of Education investigation, one single instance of sexual violence is sufficient to qualify as creating a hostile educational environment.
Since that letter came out, schools rushed to set up policies and procedures to establish their compliance with Title IX. The Letter mandated the hiring of a Title IX Coordinator in every institution and to adopt a grievance procedure outlining the complaint, investigation, and disciplinary process for addressing sex discrimination, sexual harassment, and sexual violence.
As school rolled out their procedures, criticisms quickly mounted. Lawyers worried that campus tribunals used procedures that lacked basic fairness and reliability. In October of 2014, a group of 28 Harvard Law School professors wrote an open letter that was published in The Boston Globe, blasting Harvard’s approach to handling sexual harassment because there were insufficient protections of the accused. While Harvard Law School made some changes to its own procedures, including providing counsel to accused students who could not afford to hire their own lawyers, such improvements did not apply to the rest of Harvard University nor did other colleges and universities change their policies in response to the Harvard Law criticism.
A student found responsible for sexual assault is almost always expelled from school and barred from campus. His permanent record will note that he was found guilty of sexual assault, thereby limiting his educational, employment, and housing opportunities. Such a life-shattering event warrants high standards of due process protections for the accused. While courts provide such protections, campus tribunals do not. At some schools, students facing such accusations are permitted to hire a lawyer to represent them, but many schools do not allow for legal representation. In many of those schools, students are permitted to have an academic advisor play lawyer for the day and represent him at the hearing. This is a common and astonishing practice: an academic with a PhD in Russian History is no better prepared to call witnesses, cross-examine adverse witnesses, and advocate on an accused student’s behalf than I am to teach a class on Peter the Great.
In recent years, the accused assailants have been fighting back. They are appealing disciplinary rulings and filing lawsuits asserting that college administrators unfairly rushed to judgment in their cases. These decisions have damaged their reputation, disrupted their education, and in some cases cost them thousands of dollars in lost tuition, legal expenses, and other costs. Some of these lawsuits invoke Title IX arguing that the accused was discriminated against because of his male gender.
If you or someone you love has been accused of an on-campus sexual assault at any college, university or school in Massachusetts and are facing disciplinary proceedings, you need an experienced sex crimes attorney to handle your case. I invite you to contact me for a free consultation. Even if your school does not permit lawyers in the actual proceedings, you may benefit from legal counsel to provide legal advice, assist in preparing you and your advisor for the hearing, and ensure that your school’s disciplinary procedures complies with Title IX requirements. If you are found responsible for the assault and face disciplinary punishment, a lawsuit might be appropriate. If I have worked with you during the disciplinary proceeding, I can ensure that your case is prepared and presented in a way that will improve your likelihood of success in a subsequent lawsuit.
Another pressing reason to consult with a lawyer before going through a disciplinary proceeding is that it might be in your interest to refuse to speak to school investigators and to refuse to testify on your own behalf at the disciplinary hearing. This would be an important consideration if the sexual misconduct alleged could lead to criminal charges. If the accused makes statements to school investigators or officials, his words can be used against him at a later time in court. A young student may make statements that he thinks are helpful that could later be used to convict him or enhance his punishment. I read an upsetting example of this recently: a young man was being sentenced following a rape conviction. The event took place at the Wilfred Laurier University in Canada and there had been a campus investigation long before criminal charges were initiated. The student had explained to the school investigator that he didn’t think it was a big deal to have sex with a young woman who was very drunk and was known to have had sex with other guys. Certainly it is sad that this student held this view, but it is even sadder that he said it to the school investigator. The judge angrily referenced this statement as justification for a high prison sentence. Had this young man (or others like him) come to speak to me before talking to the school investigator, he would have been advised to refuse to speak to the investigator even if it increased his likelihood of expulsion from the school.
If you or someone you love is facing sexual assault or sexual misconduct accusations on campus, please contact me, an experienced Massachusetts Title IX sexual assault lawyer, to talk about your case. I provide free consultations and would be happy to talk to you about your case.