I recently advised a student in a Title IX investigation hearing at California Baptist University, a private college in Riverside, California. There were several warning signs about the hearing.
The first warning sign was that when my student, his parent, and I arrived for the hearing, we found the complainant and her supporters waiting outside the building. These hearings are very emotional and tense for all concerned, and schools normally take steps to prevent the two sides from having any contact. Normally, this is done by having both students and their supporters report to two different locations. Then, they are either brought into the hearing one at a time. If the hearing process involves both students appearing simultaneously, most schools arrange for visual and physical separation, often by having the students appear in the hearing via a video conferencing platform such as Skype, or even by constructing cubicles separated by screens within the hearing room.
This is intended to protect both students. No one can accuse the other of trying to intimidate, reading each other’s notes, or of saying something that it overheard and misinterpreted.
The second warning sign is that my client’s participation in the hearing began two hours after the time we were directed to arrive. This could be a sign that the hearing officers either didn’t review the evidence in advance to make a realistic assessment of how long the process would take. It could also mean that they are not experienced enough to make an accurate assessment.
The hearing itself was chaotic. There were five panelists in the hearing. There was no set order that they asked questions. The panelists often talked over one another, asked several complex questions at the same time, or gave my student conflicting directions. The panelists also asked my client questions that are off-limits, both under CBU’s internal grievance procedure and by the US Department of Education, regarding his prior relationship with an ex-girlfriend who had no role in the case. Prior sexual history is a forbidden topic, as it has a potential prejudicial or embarrassing effect, and no relevance to whether or not conduct occurred in the present case.
Most disturbingly, through about two hours of questioning, four of the panelists had notepads on the table but did not even take one full page of notes each. This is a warning sign that the students’ evidence may not be taken seriously, may not be remembered accurately by the panelist, or could be misinterpreted during deliberations. It could also mean that the panelists have already made up their minds.
Since this school’s procedure requires the two students to meet privately with the panel, there is also no way to know if the other student was subjected to the same conditions.
One of the most important requirements of Title IX is that schools publish their grievance procedures and stick to them. Without knowing what to expect, a student cannot prepare. This is essential to keeping hearings fair.
There are two things a student and her or his advisor can do in this situation. The first is to prepare the student, through intensive practice and brainstorming to answer difficult questions calmly and confidently. We work together to think of likely questions and prepare thorough answers. We practice modeling how to respond to random or unexpected questions without appearing confused or nervous. A student must be prepared for anything that can happen.
The second thing is for the advisor to take detailed notes of what happens in the hearing. If there is no audio or video recording, and no transcript of the hearing, these notes may be the only documentation of the irregularities encountered. If the student must mount an appeal, or a legal action to overturn an unfair negative decision, it is vital to document irregularities.
While this post is about a specific experience at one school, the possibility of irregularities such as these, and many others occur at many schools. Such irregularities are always upsetting, and can affect the outcome of the hearing in some cases. Where schools allow an appeal process, one of the allowed grounds of appeal is usually that there was a significant procedural error that affected the outcome of the process.
Students and parents expect colleges to treat each student fairly, and to give each student the same opportunity to tell their side of the incident. They also expect the school to fairly and thoroughly examine the evidence and testimony from all sides. Unfortunately, schools don’t provide students with professional advice on how to prepare, or how to effectively present the case. This is a reason to consider hiring a professional advisor.
Mr. Rose is licensed to practice law in California. Your school cannot prevent you from selecting the advisor of your choice, including an attorney or other professional. Outside of California, Mr. Rose’s assistance is educational advice, and does not constitute legal advice or the practice of law. This website, and all of the materials within it, are offered for informational purposes only, and do not constitute legal or educational advice.
(c) 2016, 2017 by Alec Rose All Rights Reserved. No claim made on US or California Government Works and Publications.
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