The Department of Education has issued new, Interim Guidance on how colleges should handle allegations and investigations of sexual misconduct on campus. It is slightly more protective of the rights of accused students and permits colleges to have more choice in how to handle investigations. However, the Interim Guidance is not an order for schools to change their ways. It essentially allows schools the freedom not to follow the “Dear Colleague Letter” rules (which threatened the funding of schools that did not comply) and gives schools more breathing room to adopt more accused-friendly-and many would argue more universally fair-rules.
So, what does this all mean?
- Schools may opt to use the higher “clear and convincing” standard of proof to find an accused student responsible.
- Schools are cautioned to provide equal treatment to the accuser and the accused. Must provide meaningful and equal evidence uses in the hearing and providing equal levels of accommodations to students during the investigative and hearing process.
- The burden is on the school – not on the parties – to gather sufficient evidence to reach a fair, impartial determination as to whether sexual misconduct has occurred and if so, whether a hostile environment has been created that must be redressed;
- Informal mediation is now available to resolve complaints if both parties agree to it;
- A previously imposed suggestion of 60 days to resolve investigations has been changed to “reasonably prompt” (not defined); and
- Colleges can now set their own policy regarding who can appeal the decision of the investigation. Previously, schools had to allow both the accuser as well as the accused the opportunity to appeal the outcome. Some schools may switch to only allowing the accused to appeal.
The Bottom Line: When a college student is charged with a crime, there is a lot at stake. The potential of expulsion or losing a scholarship, jail time, fines and severe limitations for future career prospects all come into play. You will need the strongest criminal defense attorney available. Title IX mandates that colleges and universities take sexual assault accusations seriously, and they do. As a result, you need your criminal case to be handled expertly as you may also face consequences with the university. Call me: 513.260.2099