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Photo of Matt M. McClenahen
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Title IX Defense

Standing Up For The Accused In Title IX Cases

Title IX offices are a part of the student discipline system at Penn State and other American colleges and universities. Title IX offices deal with sex offense allegations as well as dating or domestic violence allegations against students. The Title IX process is very different from the discipline process faced by students accused of more common and less serious crimes like underage drinking, marijuana possession or driving under the influence (DUI). Not only are the procedural rules different, but the stakes are much higher in a Title IX case as well. If a student is found responsible for violating the Code of Student Conduct in a Title IX case, separation from the university in the form of suspension or expulsion is far more likely than it would be in a normal student discipline case.

The U.S. Department of Education establishes guidelines, which Title IX offices throughout the country are expected to follow, but some procedural rules still vary greatly from school to school. In recent years, the Penn State Title IX office has frequently changed its procedural rules, sometimes in response to federal lawsuits filed by students who have alleged violations of their due process rights. Thus, there is no point in giving a detailed account of the Penn State Title IX procedural rules here, because they change more frequently than we update our website. If a Title IX complaint has been filed against you, Attorney McClenahen can explain the procedures to you as they exist at that moment in time.

An Ever-Changing Area Of Law

The highly politicized nature of sex offenses and dating and domestic violence is the reason why Title IX procedures are in a constant state of flux. Universities find themselves in a tug of war between two competing forces. On the one side, there are victim advocacy groups who feel that affording an accused student due process and a fair hearing will “re-victimize” the complainant, leading to even greater trauma. They take particular issue with a complainant having her story challenged through cross-examination. These victims’ rights groups are not concerned about the rights of a falsely accused student, because they believe that false allegations almost never happen. In their black-and-white worldview, anyone advocating for the rights of the accused must be a “rape apologist.” On the other side, there are civil liberties advocates and defense lawyers who seek to protect the rights of accused students. Those of us on this side of the debate fear that relaxed due process standards increase the risk of a falsely accused student being suspended or expelled. Through extensive experience, we know that a certain percentage of accused students are, in fact, factually innocent.

Navigating A Flawed System

It is important to understand that the Title IX process is distinct and separate from the criminal justice system. The criminal justice system has built-in filters to identify false allegations of sexual assault or domestic violence before any charges are filed. Police detectives tend to do a good job of filtering out false reports, especially when a defense lawyer and defense private investigator can provide exculpatory evidence to the police detective. Thus, when the system works, factually innocent suspects can avoid criminal charges based upon a false allegation of sexual assault. It is only when the system fails that a factually innocent suspect is charged, but at that point, he is protected by constitutional guarantees of due process that reduce the likelihood that a falsely accused person will be convicted.

In marked contrast to the criminal justice system, there is no filter in the Title IX process. All students are presumed credible, no matter how absurd their accounts may be. Thus, pretty much any false allegation can ultimately result in a Title IX hearing. The matter will not be dropped simply because the complainant’s story does not add up and the respondent passed a polygraph exam and has far more credible account. For a variety of reasons, a university would rather have a hearing panel reject a transparently ridiculous allegation than to simply filter out a false allegation the way the police would.

How A Defense Attorney Can Help

The role of a defense lawyer in a Title IX case is crucial, but also limited. Both the accused, known as the respondent, and the complainant have the right to an adviser, which is usually a lawyer. Yet neither lawyer is allowed to participate directly in the hearing. We essentially act as coaches, and then both the complainant and respondent have to represent themselves at the hearing. The students are allowed to call “time out” to talk to their adviser/lawyer during the hearing, but the lawyers must remain on the sidelines throughout the hearing.

Needless to say, having two students representing themselves at a hearing in a sex or dating violence case is a less than ideal system. The current position of the American Bar Association is that both students should have the right to a lawyer at a Title IX hearing. Hopefully, the Department of Education will eventually adopt this approach.

Although the Title IX process lacks the same due process safeguards of the criminal justice system, a surprisingly high percentage of respondents do manage to prevail at Title IX hearings, especially if the accused student has the assistance of a good lawyer and private investigator. This is in part due to selection bias. Factually guilty respondents rarely opt for a hearing while factually innocent respondents almost always take a hearing.

Speak With An Experienced Defense Attorney Today

If a Title IX complaint has been filed against you, you need the assistance of a criminal defense lawyer with experience in Title IX cases. Generally speaking, criminal defense attorneys in college towns are more familiar with Title IX cases than are lawyers who do not represent many students. Feel free to contact McClenahen Law Firm P.C. for a free initial consultation about your Title IX case. You can reach the firm online or by telephone at 814-308-0870 to arrange a confidential legal consultation.