New York Criminal Lawyer Blog
As a college and university Title IX attorney-advisor, I have shepherded many a client through either a fact-finding hearing or informal/administrative resolution resulting in a finding of no responsibility, aka, an “acquittal”. Whether they were accused of violating Title IX’s provisions against dating violence, stalking and/or sexual assault due to a lack of affirmative consent, I have repeatedly done so for clients at highly respected colleges and universities including Columbia, Barnard, NYU, and Binghamton, among others. In fact, over the past months and years, through preparation and advocacy, these students were able to return to their normal and pre-accusation life with no further or future implications to their academic status and careers.
The above said, a “win” in these proceedings is not always measured in complete exoneration. After all, the evidence may be strong of some wrongdoing and/or the deck is routinely stacked against respondents out of the gate, even if colleges and universities deny the reality of the latter. Not only do I know this having handled dozens of these matters from investigation through hearing, but I have also borne witness to what I believe is either intentional or reckless indifference toward even a modicum of due process and the rule of law. To that end, I am involved in both an Article 78 proceeding and a Title IX action against a school that found a client responsible for sexual assault after acknowledging the other party affirmatively consented to the sexual interaction (yes, you read that correctly). Further, the school blatantly ignored a lie by the complainant during the pendency of the investigation that could have resulted in significant sanctions against our client. This lie was corroborated by a professor. The school not only withheld this information but conducted no investigation until we learned about the malicious misrepresentation and confronted the Title IX office for the dereliction of their duties.
Though I wish this behavior was an atypical apparition, I have seen schools across the United States treat the same procedures they are mandated to follow as “optional” despite knowing full well their investigators, administrators, and adjudicators would cry foul if they or a loved one were subject to the same treatment they dole out. To that end, I am currently involved in a second Article 78 proceeding against an Ivy League University where, among other things, the Title IX Coordinator and Hearing Chair ignored my objections to the proceedings despite a hearing panel member driving her car during testimony after I already made a record that the same hearing panel member was previously engaged in other activity during live testimony. Treating student testimony like an audio book during a Sunday drive, my client was found not responsible for any of the allegations he was charged with and provided notice of, only to be found responsible for a violation not previously charged or noticed. Simply, this school did its best to fit their preconceived square peg in a round hole with no respect for process or the rule of law.
Returning to the most recent matter, after presenting evidence that challenged whether our client’s actions were intentional and, if nothing else, called into question the veracity of what witnesses believed they saw, this particular school agreed to an administrative/informal resolution whereby our client would be suspended for the summer and next semester. Further, a no-contact order would remain in effect through the student’s time at the institution. Rejecting that “offer”, we repeatedly advised the school that one of the purported witnesses made racist statements about our client and demanded that the witness who the statement was made to be asked about it. This follow up never occurred in advance despite our pleas and only happened at the hearing where the adjudicator asked about the statement because the witness was fortunately available (witness statements, with hearsay, are routinely used, when witnesses are unavailable or don’t want to testify, thereby making Title IX defenses that much more difficult).
Arguably more important, though our client was not arrested or charged with any offense even after the police arrived and New York’s mandatory arrest laws for domestic allegations, paperwork drafted by school security falsely claimed that our client had a history of violence and assault. Completely untrue, we repeatedly asked the school the basis of this statement and to redact the same. The school simply ignored multiple requests until at the hearing the adjudicator advised that she would not consider this notation…after reading what we argued had no place in the evidence. Despite the adjudicator’s statement, I made a record that the toothpaste was already out of the tube and it would taint the adjudicator’s objective analysis. Stated differently, propensity and prejudicial evidence that is both irrelevant and false has not place in a courtroom or a Title IX hearing.
Ultimately, the adjudicator found my client responsible for dating violence, but instead of a suspension as offered by the school as part of the informal resolution, along with a no-contact order for the client’s time at the university, the adjudicator placed my client on probation and dissolved the no-contact order. More importantly, the probationary sanction will not be noted on his transcript as would a penalty for suspension. While I believe there were grounds to appeal, the client wanted the matter over. For the client, as imperfect as the resolution was, having no permanent or long term mark on his transcript, being able to remain in school and graduate timely, and the removal of the no-contact order gave our client the closure our client needed.
The goals of Title IX are spot-on, just as the law itself is absolutely necessary. However, if you believe in the right to confront your accuser and his or her witnesses, having confidence that procedures will be followed or even sometimes just simply understood, have faith the rule of law and preponderance of the evidence standard will be followed, as opposed to a different agenda, and that your adjudicators, aka, judges, are equipped and experienced in these matters, know that the reality of Title IX will often disappoint and frighten you.
At bottom, with a limited “off ramps” to resolve Title IX cases and the immediate and long-term ramifications to findings of responsibility, there is no substitute for preparation, experience, and advocacy. Having “exonerated” clients, secured favorable administrative resolutions, and resolved hearings with non-responsibility or lesser findings and lower-level sanctions, Saland Law is equipped to serve as student advisors across the United States.
To learn more about Title IX investigations and hearings, click the link above or visit TitleIX-Lawyer.Com.