For the Defense - Vol. 7, Issue 3 - 39

Education in its 2020 regulations generally benefit both
respondents and complainants. Some key elements of
a fair grievance process set forth in the 2020 regulations
were informed by court decisions where respondent
students had sued their colleges in the wake of unfair
proceedings. Many of what were deemed to be unfair
processes by courts had been instituted by colleges and
universities in response to the federal government's
aggressive and public steps beginning in 2011 to combat
what it viewed as an epidemic of sexual assault on college
campuses.6
At the same time, schools were (and continue
to be) subject to public pressure-including from their
own student populations-to crack down on alleged
perpetrators of sexual misconduct. While sexual assault
claims must be taken seriously and investigated properly,
many schools went too far in pursuing these laudable
goals,
essentially eliminating due process protections
for accused students, the great majority of whom are
male. The 2020 regulations, which are currently in effect,
codified enhanced protections for accused students such
as mandating adequate notice of allegations, access
to evidence, and the right to a live hearing with direct
cross examination. At the same time, the regulations also
allowed for informal resolution of complaints as well as
supportive measures for the parties (counseling, academic
accommodations, changes in housing, etc.).
Considerations Regarding Complainants' Parallel Courses
of Action
Perhaps because of the added procedural protections
for respondents in the current regulations, it is not
uncommon to see complainants take three parallel tracks
in complaints of sexual misconduct to put maximum
pressure on the students they are accusing: a Title IX
complaint at their college, a civil PFA action, and a criminal
complaint to law enforcement. (Even without a criminal
complaint, the conduct often alleged could, if proven,
support a criminal charge or finding so it is necessary to
proceed with caution.)
These situations call for different considerations
depending on the circumstances. There is no one-size-fitsall
approach.
With a criminal complaint pending, sometimes, a
college is willing to briefly pause its Title IX disciplinary
process until more information can be learned about the
status of the criminal case (e.g., if charges will be pursued
or declined). The same can be true if there is a parallel
PFA matter where a college may pause the proceedings
depending on if and when there will be a court hearing.
In other instances, a college will push to continue its
disciplinary process concurrently with the criminal or PFA
cases. This obviously creates a dilemma about whether
to allow your client to participate fully in the Title IX
process and give statements because if your client does
not participate in the college's Title IX process, it is almost
guaranteed there will be a finding of " responsible " (i.e.,
guilty). Sanctions following a " responsible " finding for
sexual assault often include expulsion or suspension and a
permanent disciplinary record.
As discussed below, sometimes there are ways to
" participate " without your client giving a statement,
such as sharing documentary evidence and witness
accounts. At the same time, knowing what to share
and when can be challenging because there is no per se
right to discovery in a Title IX proceeding (or any campus
disciplinary proceeding). The evidence and any interview
summaries, including interviews of the complainant and
witnesses, are gathered during a phased process but not
shared with the parties until the conclusion of the initial
investigation. Before the investigative materials are
shared with the parties, often months into the process,
the only information the accused has about the nature of
the Title IX complaint is a preliminary notice, which usually
contains a bare-bones description of the allegation.7
That's why - when we represent an accused student
in the Title IX process and the complainant has obtained
a temporary PFA order-we work closely with PFA
counsel to coordinate between the PFA process and
the Title IX process. If the PFA hearing happens first,
then PFA counsel should consider serving a subpoena
for the college's Title IX file to access statements
made by the complainant in the Title IX process in
order to potentially use those statements in the PFA
hearing. This is necessary because, as discussed above,
the accused student is often at the stage of the Title
IX process where very few details have been shared.
Although a subpoena upon the college of university
can be successful, it is not uncommon for the university
to fight turning over relevant documents because of
the privacy rights of the involved students, including
witnesses.8
If PFA counsel does obtain the Title IX
file, the file may yield inconsistent statements by the
complainant in his or her initial complaint to the Title
IX office, information shared with witnesses, and his or
her interview in the Title IX process. Counsel can use
inconsistent statements to impeach the complainant
when he or she testifies at the PFA hearing. And if
the complainant makes statements at the PFA hearing
that are inconsistent with his or her statements to the
college's Title IX coordinator or investigator, then the
transcript of the testimony could be used by Title IX
counsel in the campus disciplinary case to undermine
the complainant's allegations. Title IX counsel should
be mindful of the college's deadlines for submission of
evidence in the Title IX process. This is to ensure that
anything that is helpful from the PFA proceeding - such
as the court hearing transcript where the complainant
may have made some material concessions-can be
submitted to the college on time. Some colleges have
Vol. 7, Issue 3 l For The Defense 39
For the Defense - Vol. 7, Issue 3

Table of Contents for the Digital Edition of For the Defense - Vol. 7, Issue 3
