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How to Prepare for When the Hearing Goes Crazy

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.

Contact Alec Rose


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.

Key Differences between Title IX Sexual Violence and Sexual Harassment Grievance Procedures and Criminal or Civil Court Procedures.

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.

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.

Contact Alec Rose


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.

 

Consent and Intoxication in Sexual Violence Grievances

Demonstrating the presence or absence of consent to sexual conduct is the most crucial aspect of a Sexual Violence grievance under Title IX. Providing evidence of consent is a complex process, and without the benefit of an experienced advisor, many students fail to show sufficient evidence of consent or lack of consent to prevail in the grievance process.

The U.S. Department of Education defines Sexual Violence as “sexual acts perpetrated against a person’s will or where a person is incapable of giving consent–due to age, intoxication or drug use, or due to an intellectual or other disability.” Schools, colleges, and universities must investigate accusations of sexual violence and take prompt and effective steps reasonably calculated to end the sexual violence, eliminate the hostile environment, prevent its recurrence, and, as appropriate, remedy its effects.

in 2014, California became the first state to enact a law requiring proof of affirmative consent in all sexual violence investigations by postsecondary institutions.

Consent is required for every individual intimate act: When a Sexual Violence grievance involves a sexual encounter where there was a series of intimate acts, the accused student must demonstrate evidence of consent for every intimate act involved, not just for the encounter as a whole. For example, the California State University (CSU) Sexual Violence Policy contains a definition similar to that used by most schools:

“Consent can be withdrawn or revoked. Consent to one form of sexual activity (or one sexual act) does not constitute consent to other forms of sexual activity (or other sexual acts). Consent to sexual activity given on one occasion does not constitute consent to sexual activity on another occasion. The fact that two people are or were in a dating or sexual relationship does not constitute consent to engage in sexual activity. There must always be mutual and affirmative consent to engage in sexual activity. Consent to a sexual act may be withdrawn or revoked at any time, including after penetration.”

Current trends in student lifestyles such as binge drinking, access to marijuana, and hookup culture add complications to determining the existence of consent in ambiguous circumstances. Students using location-based meetup applications may have intimate encounters with others after very little personal interaction, under circumstances where the extent of intoxication is unclear and consent may have been inappropriately assumed. Assessing the reasonableness of the respondent’s belief in consent under such circumstances can be difficult.

Evidence of Consent or Lack of Consent: Evidence of consent may involve an explicit verbal statement of consent or may be shown through a person’s behavior. Students often have difficulty describing sexual acts to school administrators in a manner that demonstrates the presence or absence of consent. An effective and experienced advisor can assist the student with identifying specific evidence of where consent was or wasn’t given, helping the student clearly express and document these examples, and overcoming the embarrassment or fear of describing sexual or violent conduct in a manner that demonstrates the presence or absence of consent.

Intoxication and Ineffective Consent: Intoxication and drug use can make consent ineffective. Unlike drunk driving, there is no official blood-alcohol level at which a person is deemed unable to give consent. Colleges may vary widely in their perceptions what degree of intoxication is sufficient to make consent ineffective. Combinations of alcohol and drugs are often difficult to assess.

Usually descriptions of intoxication symptoms and drinking/drug use patterns are the only evidence available. This evidence can be unreliable, leading to difficulties in interpreting the witness or party’s level of intoxication. The more specific the information, the more helpful it can be in demonstrating the presence or absence of significant intoxication. The student or others who observed the student should also be able to describe the effects or evidence of intoxication, such as slurred speech, poor coordination, throwing up, or loss of consciousness. Such symptoms can imply the actual level of intoxication.

Intoxication is not always obvious to others. Students often “pregame” or drink alcohol privately before attending a party, either because the student is underaged and won’t be served at the event, or to save money on drink purchases later. Young people who have a strong constitution may not exhibit the full extent of their intoxication.

An experienced advisor can help a student to articulate a narrative showing the extent to which both intoxication and consent were involved in the accusation. Poor explanations by students who are traumatized or embarrassed by the situation or by having to explain it cannot meet the evidentiary standards needed to prevail. The ability to present this evidence and provide documentation is essential in sexual violence grievances.

Contact Alec Rose


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.

The preponderance of evidence standard of proof for Sexual Harassment and Sexual Violence grievances.

The U.S. Department of Education mandates that schools, colleges, and universities apply the “preponderance of the evidence” standard to determine the merits of sexual violence and sexual harassment grievances. Preponderance of the evidence means that based on an examination of the available information, the accusation is shown to be more likely than not that the alleged conduct occurred.

This is the same legal standard used in most civil lawsuits. Your school’s investigator may explain this standard to you in various inaccurate definitions such as “more than 50% likely to be true,” or “if one side has 50% plus a feather of proof” they are the “winner.” Some training materials for Title IX personnel inaccurately cite this example as coming from an authoritative source such as Blacks Law Dictionary.

These interpretations of preponderance of the evidence are inaccurate because they present a false implication that the school must decide that one student or the other is telling the truth, and that that student’s claims therefore prevail. What if the investigator cannot determine that either student is telling the truth? What if the two student’s narratives appear to be equally likely to be true?

Preponderance of evidence is more than the simplified balance scale given in the above examples. Preponderance “denotes a superiority of weight, or outweighing. The words are not synonymous, but substantially different. There is generally a “weight” of evidence on each side in case of contested facts.”

This is not a simple question of which student is “more believable,” or a requirement to decide that one is more truthful than another. Both students could be equally truthful in stating their perceptions and recollection of the same event, but have perceived it differently from one another.

In determining the Preponderance of the Evidence, the school’s investigator or hearing officers should look at the entirety of the evidence, and determine the extent to which the evidence as a whole demonstrates the truth of each relevant fact. If there is a “superiority of weight” in the evidence as a whole in favor of the truth of the accusation, it should be deemed substantiated. If there is not such a superiority of weight, it should be deemed unsubstantiated. This also means that if there is a conclusion that the evidence shows that the accusation is equally likely to be true or untrue, the school must decide in favor of the respondent.

Your advisor can only assist you in substantiating your claims or refuting the claims against you through experience in working with the concepts of evidence and administrative law. It is one thing to read a definition. Assembling a convincing and well-documented narrative requires experience and creativity.

Contact Alec Rose
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 Government Works and Publications.

Will my school close the investigation if I withdraw? Does it matter if the Complaining Student withdraws?

Your school or college will likely not close the investigation if the Complainant, Respondent, or both withdraw from the school.

Congress has passed several laws that mandate investigation and reporting of Sexual Violence, Domestic Violence, Stalking, Sexual Harassment, Hate Crimes, and other illegal activities on college property and during college-sponsored events and activities. These laws apply even when the victim or perpetrator are not current students or university employees, or were never even enrolled or employed.

The Crime Awareness and Campus Security Act of 1990  amended the Higher Education Act of 1965 (HEA) to require schools whose students are eligible for federal financial aid to disclose crime statistics and other information about safety on college and university campuses. In 1998, a further amendment, the Jeanne Clery Disclosure of Campus Security Policy and Campus Crime Statistics Act further defined this requirement. Finally in 2013, the Violence Against Women Reauthorization Act of 2013 (VAWA) expanded this requirement.
The U.S. Department of Education Office of Civil Rights requires colleges to make their own findings about the truth of accusations of sexual violence, stalking, and sexual harassment. If a student on either side of the matter withdraws or takes a leave of absence, the student may still participate in the investigation and any hearing provided by the college’s grievance procedures.

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 Government Works and Publications.