This article is intended to explain the title IX investigation process. While the process is fairly standard at every School, some States and Schools have unique rules and requirements.

What Conduct can be Investigated using the Title IX Investigation Process

The Title IX Investigation Process is mandated for certain types of conduct that is reported.  To begin, the conduct in question must have occurred on campus or be related to the School's programs/activities.  The latter category (programs/activities) can be hard to define.  Clear examples would be if conduct occurred during a School sporting event or during some sort of clinic/internship. If there is any question if certain conduct must be investigated using the Title IX investigation process, an experienced lawyer should be consulted.

Additionally, only conduct that occurred in the United States is required to be investigated using the Title IX investigation process.

Finally, only certain type of conduct is covered under Title IX:

• Sexual Assault;
• Dating and Domestic Violence;
• Stalking;
• A school employee conditioning the provision of an aid, benefit, or service on participation in unwelcome sexual conduct (quid pro quo); or,
• Unwelcome conduct that is determined by a reasonable person to be so severe, pervasive, and objectively offensive that it effectively denies a person equal access to a school's education program or activity

If all three of the above requirements are not met, then the Title IX investigation process is not mandated. That said, a School can still use the process within their discretion. If a school decides not to use the title IX investigation process, it can still refer the conduct in question to other offices for investigation without the title IX rules.

When in doubt, it is best to report the conduct in question to the Title IX office.

Initial Actions After Report

After the Title IX office receives a report, there are resources available to the complaining witness.  The Title IX office can issue a no-contact order. This order can be one-way, meaning only one party cannot contact the other. Or, the no-contact order can be mutual, meaning both parties cannot contact each other.  Additionally, counseling services and academic accommodations can be made available to the complaining witness upon the initiation of the Title IX investigation process.

The complaining witness has the optional to file a formal complaint or an informal complaint.  If the complainant files a formal complaint, and is participating in the investigation, then the title IX investigation process is mandated. If the complainant is not participating, then the Title IX office has the discretion to proceed with the investigation regardless.

If the complainant wants to file an informal complaint, both parties have to consent to the resolution. The resolution could consist of anything, but most commonly is just a no-contact order. Basically, the complainant desires to stop interacting with the accused. That said, even if the complainant desires an informal complaint, the Title IX Office can still start the Title IX investigation process within their discretion. Typically the Title IX office will do this if there is violence, threats, indications of predation, and/or the ability to prove the case without the complainant's cooperation. Additionally, the Title IX office will overrule the complainant's wishes if there is a continuing risk to current students/employees.

The complainant can decide to pursue an informal resolution at any point in the process. The informal process cannot be used if the complainant is a student and the subject/accused is an employee.

The Title IX Investigation Process

After a report, if the Title IX investigation process is initiated, an investigator will be appointed. The investigator will interview, at a minimum, the complaining witness and the accused. Additionally, the investigator will interview anyone with relevant knowledge and can collect hard evidence, such as text/social media messages, voicemails, photos, videos, emails, police reports, medical records, etc.

When the accused (subject) is interviewed, his/her lawyer is entitled to be present.  The complainant has the same right.

The Title IX investigator actually has the burden of collecting evidence.  Essentially, this means that the investigator should not rely on others to bring them evidence. Instead, when he/she learns about evidence, they have an obligation to seek it out. This burden benefits both the complainant and the accused/subject and should result in a more just and fair process/result.

Once the investigator has collected all relevant information, in his/her opinion, then he/she writes a report and sends it to both the complainant and accused/subject. Both parties are typically given 10 days to submit a rebuttal/response to the report.  The title IX investigator then considers both rebuttals/responses, and determines if any modifications are warranted. The report is then finalized and the Title IX investigation process proceeds to a hearing.

Title IX Hearing

A hearing is the next step in the Title IX investigation process. The hearing can now be virtual, but must be live. The Title IX investigator's report will be reviewed and the investigator must be present and subject to questioning.

At a Title IX hearing, both the subject and the complainant are subject to questioning by the other party's advisor (which can be a lawyer). Additionally, other witnesses are subject to questioning. If a witness refuses to be questioned, then his/her prior statements cannot be considered. All other types of evidence, discussed above, can be considered.  There are some rules of evidence that apply, such as relevancy and rape shield protections.  The standard of proof at all Title IX hearings is the preponderance of the evidence or clear and convincing evidence.  Typically, hearings will consist of the following:

• Introductions
• Respondent's statement accepting or denying responsibility
• Opening Statements
• Complainant and Respondent Testimony
• Other Witness Testimony
• Closing Statements

After all evidence is collected and considered at the hearing, a determination is made (typically within a few days) as to whether or not the accused is liable. If liable, the process officially concludes, unless an appeal is filed. A written report will be created and provided to the respondent/complainant. Sanctions could include:

1. Withdrawal of Privileges
2. Restitution
3. Mental Health/Medical Assessment/Treatment
4. Fine
5. Exclusion
6. Education Projects/Initiatives
7. Community Service
8. Admonition
9. Formal Warning
10. Disciplinary Probation
11. Suspension
12. Expulsion
13. Demotion (employees)
14. Termination of employment (employees)
15. Other Sanctions/Restrictions on Activities

Appeals

An appeal can be filed by either party on one of the following grounds:

• Procedural irregularity
• Conflict of interest/bias
• New Evidence

Additionally, each School can allow appeals on other grounds (i.e. abuse of discretion).

Typically appeals must be filed within 10 days of receiving the decision from the Title IX hearing.  An appellate hearing officer can decide to convene a hearing to consider additional argument, within his/her discretion.

Once an appeal decision is reached, the Title IX investigation process officially concludes.

What a Lawyer can do during the Title IX Investigation Process

A lawyer can serve as either the complainant's or the respondent's "advisor" throughout all stages of the Title IX investigation process.

During the investigation stage, a lawyer can be present during any interviews and can assist the complainant/respondent in collecting additional evidence.

During a Title IX hearing, a lawyer can question the other party (either the complainant or the respondent). Additionally, a lawyer can prepare a trial plan for the complainant/respondent and practice this plan with him/her. This ensures that the party in question prepares his/her best case.

Finally, a lawyer can write a response to the initial investigative report or an appeal to the Title IX hearing.

Retaining an experienced Title IX lawyer during the Title IX investigation process increases one's chances of achieving his/her goals.

Attorney Matthew Barry

This Article was written by Attorney Matthew Barry, a West Point Graduate, Iraq and Afghanistan War Veteran, Retired Army Major, and experienced North Carolina Defense Attorney.

Review his prior case results and former client reviews.

Contact Attorney Barry today to discuss your case with him in depth.  Attorney Barry can be contacted at the following phone number or email: 704.496.2869 or info@mattbarrylaw.com

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