What’s Going On?
In 2011, the United States Department of Education’s Office of Civil Rights issued a “Dear Colleague” letter to all federally funded colleges and universities. The Department demanded that they implement swift and strict response procedures when they receive allegations of sexual assault, sexual violence, sexual harassment and other acts of misconduct that may be sexual or gender-based in orientation. The Department implied that failure to comply with this demand could lead to the loss of federal funding.
Since then, higher education institutions have found it difficult to balance this need to respond aggressively to valid complaints of misconduct with the legal and procedural rights of those who complain about sexual misconduct and those accused of misconduct.
All schools publish complaint, investigation and disciplinary proceeding guidelines, policies and procedures. They usually are found in printed or on-line student handbooks. Most are difficult to understand. While most schools require absolute student compliance with them, many schools routinely fail to adhere to their own policies and procedures. And many schools also fail to meet their related legal obligations to fairly and appropriately investigate and take action in response to these types of allegations.
When schools mismanage the complaint process and violate the legal rights of students who complain about, or who are accused of sexually oriented misconduct on campus it is the students who suffer damaging consequences-often life altering--including the loss of valuable rights and benefits.
On a rapidly increasing basis, schools across the country are finding themselves having to defend their failures to meet their legal obligations to students when receiving, investigating and responding to complaints of misconduct, in civil court actions. Courts across the country are uniformly recognizing these actions as valid, allowing them to proceed to a conclusion thereby allowing students to pursue and receive appropriate remedies when they have been wronged and damaged by the schools they trust not to do them harm.
Campus Disciplinary Actions Present Complex Legal Issues, Requiring Sound Legal Advice
Students should be able to report misconduct without fear of reprisal.
The law encourages students affected by sexually oriented misconduct, to report it. The law requires schools to respond to those reports in a particular manner, most often using specially designated personnel who are trained to address these types of complaints in a legally compliant manner. In fact, Title IX of the Education Act of 1972 requires that educational institutions receiving federal funding operate in a nondiscriminatory manner when investigating, counseling and implementing discipline in cases involving complaints of sex-based harassment and other forms of on campus sexual misconduct. Often times relying on Title IX’s anti-retaliation requirements, some schools actually require students to report the misconduct, under threat of being disciplined if they fail to do so.
So why are so many students failing to report allegations of sexually oriented misconduct? There are many reasons, but here are a few important ones:
- Fear of retaliation or push back from school officials, particularly if a complaint involves high profile students, such as star athletes.
- Peer pressure and fear of becoming a social outcast.
- Fear that the facts may not be crystal clear enough or that the schools otherwise will not take the report seriously.
- A reputation among some schools that they are motivated not to tell students about what their complaint and privacy rights are, or that they encourage students to actually leave the school, rather than report incidents in turn suffering negative consequences the schools describe to the student as inevitable, if a complaint is processed.
- Concern about whether alcohol, drugs or other behaviors by the victim will be considered contributing factors to the alleged sexual misconduct, resulting in disciplinary action against the accuser.
Title IX and other laws protect students who have valid complaints. They provide rights of privacy and protections against harassment, retaliation, and discrimination. They also provide remedies to students whose complaints are not responded to in a legally compliant manner. Knowing how to activate these legal rights and protections is what ensures that legitimate complaints are properly investigated, responded to and remedied. Students who have experienced sexual misconduct do not have to suffer in silence from fear, stress, anxiety, declining academic performance, or even a perceived need to leave school, because of a fear about reporting the misconduct. The guidance of sound legal counsel to navigate through these confusing complaint processes can prevent damage and injury from occurring, and ensure that complaints are properly reported, and responded to and remedied. And when complaints are not handled properly, legal counsel also can provide invaluable guidance about pursuing a remedy for the resulting harm.
What about accused students -- how bad can a school’s mismanagement of a disciplinary allegation be for an accused student?
Accused students immediately find themselves in the midst of a true legal crisis, in which the investigation and disciplinary processes are flawed and unfair. The pressure upon school officials to swiftly and harshly discipline accused students often outweighs the rights of the accused students to have a full investigation and fair hearing. Disciplinary decisions are often pre-judged and made abruptly, based upon stereotypes and assumptions, and often without evidence of wrongdoing. Disciplinary charges will be assessed, more often than not--whether the allegations are legitimate or not-- and they will be pursued to a conclusion -- whether the accused knows and protects his or her rights, or not.
Without knowing how to navigate the intricacies of campus disciplinary procedures and without knowing their actual rights, accused students may have if confronted with an allegation of misconduct, disciplinary action will be brought. Accused students can and most often do find themselves facing immediate interim, and eventually permanent, life-altering consequences. A few of them include the following:
- Immediate, interim loss of rights, benefits or privileges, including suspension of: a) academic privileges, b) class attendance rights, c) access to on-campus housing; and d) participation in campus-wide activities, while the matter is under investigation or while disciplinary proceedings are pending, whether there is evidence to support a finding of guilt, or not.
- Denial of hearings or an ability to see, confront or respond to evidence of alleged wrongdoing.
- Denial of lawyer or parental involvement in a proceeding to assist accused students.
- Permanent disciplinary sanctions that damage or destroy an otherwise impeccable student reputation and record.
- Permanent transcript entries that impede acceptance of transfer or graduate school applications, or even job applications.
- Expulsion in a manner that renders the student ineligible to return to the school, or to enroll in any other school.
- Referral of cases to authorities who may pursue criminal prosecution.
The law, including Title IX’s anti-discrimination requirements, protects the rights of accused students, especially those who have been damaged by a disciplinary decision arising from a flawed or arbitrary on-campus process. While a court order or judgment may be the only recourse a student has to unwind a wrongfully imposed disciplinary sanction or to remedy the damage caused by one, knowing one’s rights, and how to navigate through the intricacies of the proceedings while they are pending, can prevent the imposition of severe sanctions, or at least make a subsequent court case stronger. The guidance of sound legal counsel is no longer a luxury, it is a necessity.
Schools Cannot Prevent Students from Consulting with Legal Counsel
Citing their internal rules, schools often tell students they are not entitled to the assistance of legal counsel (or even parental assistance) in responding to misconduct charges. If readers of this page learn only one thing from their visit, it should be the following:
WHEN ACCUSED OF CAMPUS MISCONDUCT AND NOTIFIED OF A DISCIPLINARY INVESTIGATION AND POTENTIAL SANCTIONS, ACCUSED STUDENTS SHOULD IMMEDIATELY NOTIFY A PARENT, AND CONSULT WITH LEGAL COUNSEL.
Yes – there may be circumstances where parents and lawyers are excluded from direct participation in disciplinary proceedings. But no school can prevent a student from being counseled by parents and a lawyer about how to handle those proceedings, properly, even if the student has to participate in the proceedings alone. Of course when lawyers are not excluded from direct participation in the proceedings, an experienced lawyer can make a real difference in achieving the best possible outcome.
In either scenario, lawyers can guide students (and their parents) in understanding the following, among other things:
- Is due process required in student disciplinary proceedings and/or to what extent?
- Are the rights of students attending private schools and those attending public schools, different?
- Is an impartial investigation of the complaint available or required?
- Can the accused or his or her representative be prevented from investigating the alleged facts, even if the school tries to prevent the same?
- Is there a right to present the case and if so, to whom—an administrator, a neutral hearing officer, or a decision tribunal?
- Is there a right or opportunity to defensively present witnesses and other evidence?
- Is there a burden of proof, what is it, and whose burden is it?
- Is there a right to an appeal or a meaningful appeal, and if so, how are appeals processed and decided?
- What happens if an accuser fails to make a factually truthful complaint, or the complaint is not handled by the proper school officials in a legally compliant manner?
- Is it reasonable to trust that the university or college will give correct information or advice about the accused’s rights and how to protect them?
- What recourse is available in the event an unfair, arbitrary, discriminatory or incorrect disciplinary process leads to a damaging sanction?
We are trial lawyers having decades of experience representing a broad array of clients in complex civil litigation suits. In response to the rapidly emerging need for students to have experienced legal counsel when complaints about campus misconduct and disciplinary charges become an issue, Friedman, Suder & Cooke has become deeply committed to serving students and families having a need for their counsel in these trying times. We never condone bad behavior and we believe that people who engage in bad behavior should be held accountable, but fairly and appropriately. We are passionate about the well-being of students on campus. This passion includes making sure that students’ rights are not violated, and that they are protected legally when necessary. We believe that students with valid complaints of misconduct deserve to be heard, and deserve to have their complaints properly responded to. We also believe that students who are accused of misconduct deserve fair investigations and disciplinary proceedings including measured, appropriate discipline, if warranted. We believe that no student deserves to suffer life altering consequences without a fair process, regardless of whether they complain about misconduct or they are accused of misconduct.
We understand the needs of students and their families, whether they need to make a complaint or respond to one. We empathetically can help students confronting either scenario. And if there is a need to seek a court remedy for an unfair or wrongful denial of a student’s rights and the damage caused by such a denial, we stand ready and able to pursue that remedy in court.
Our practice takes us all over the country, and our location in the Dallas - Fort Worth Metroplex allows us to deploy personnel to almost any college or university with a days’ advance notice. We also have forged strong working relationships with counsel located in almost every state. This enables us to call upon and dispatch lawyers we know and trust to most locations when urgent circumstances exist and we cannot get there ourselves. However, because we are rooted in Fort Worth and have long associated with Texas Christian University, we will not take any action involving TCU.