We serve as student advisors in Title IX actions all around the country. While colleges and universities may have different policies governing these proceedings, those institutions that receive federal funds must comply with the Title IX regulations and other federal statutes. As of now, this means that those students have the right to an advisor of their choice and to have that advisor conduct cross-examination of the other party and of the witnesses.
In fact, under the Violence Against Women Act of 1994 (VAWA), and not Title IX, educational institutions cannot limit a student’s choice or presence of the advisor. Based on VAWA, an institution cannot prevent a student from retaining an attorney to assist in a sexual assault matter. Furthermore, any restrictions imposed on an advisor must be imposed equally on both the accuser and the accused.
Faculty and Staff Accused of Title IX Violations
Sadly, we have found that faculty and staff members don’t always have the same rights when accused of a Title IX violation by a student, even though there are serious consequences for a faculty member facing sexual assault or sexual harassment allegations. Faculty and staff have their jobs and hard-earned reputations on the line. Even tenured professors are at risk of losing the very job security that took years of research, writing and service to earn. Non-tenured professors can be thrown off track from receiving tenure. Coaches are at risk of losing a position at an institutions where years of work may have been spent building a highly recognized, competitive sports team.
Representation from an Outside Attorney
Unfortunately, professors don’t have the same protections as students. Many colleges and universities do not allow faculty the right to be represented by an outside attorney. These colleges may limit the professor to selecting a support person who works at the institution, even if that support person does not have a legal background or any experience with Title IX. Indeed, the training of support persons could consist of simply a few hours of training by a non-lawyer. Also, some institutions also prohibit the support person from conducting direct cross-examination on the accuser or other witnesses.
These rules can lead to an unfair anomaly where a student can have an attorney, but the professor cannot. The student’s attorney can cross-examine the professor, but the professor does not enjoy the same process for testing credibility. This result is as unfair as it sounds.
Title IX vs. VAWA Statute
How is this possible? After all, Title IX applies to all members of the educational community (students, faculty and staff) and applies to all academic, extra-curricular, athlete and other programs of a school or agency. (See 20 U.S.C. Section 1681). Although Title IX does not confer the right to select an attorney like the VAWA statute does, Title IX does have language that parties must have the “same opportunities.” Equally important for professors is that Title IX regulations state that any restriction imposed should apply “equally” to both parties.
The Bottom Line
Based on this potential, it is critical that professors and staff members find assistance from attorneys who have experience working under those situations where a staff member has limited rights. Even if the attorney cannot attend the meetings, counsel can help faculty prepare a defense, formulate questions and pose objections to unfair practices. For those at state institutions, counsel can formulate due process challenges. Further, counsel can look to see if other federal laws, such as Title VII, can be used to point out practices that may be discriminatory against the professor. Either way, faculty are better served by enlisting the services of counsel early on in the process before a sanction is imposed that may be difficult to unravel without litigation.
If you’re a professor, member of faculty, or campus administrator facing a Title IX or sexual misconduct investigation, having the right attorneys can make all the difference for your future. Please contact Susan Stone (SCS@kjk.com; 216.736.7220) or Kristina Supler (KWS@kjk.com; 216.736.7217) for assistance