All Students Have a Right to Feel Safe and Protected on Campus
All students have a right to feel safe on campus, but also to have their rights protected. If an accused student faces emergency removal, the student should immediately contact an experienced Title IX attorney to advise the student and help the student prepare for an emergency removal hearing. Families in crisis often contact us in total shock and disbelief that a school can order their student to leave campus housing and prohibit the student from attending classes. How are schools allowed to do this?
What Gives Schools the Authority for Emergency Removal?
Section 106.44(h) of the 2024 Title IX regulations allows colleges and universities to remove accused students from campus on an emergency basis. Although accused students are presumed innocent in campus Title IX proceedings, schools can order respondents to leave, provided they engage in an individualized safety and risk analysis.
Before removing an accused student, a school must determine whether the student poses an “imminent and serious threat to the health or safety of a complainant or any students, employees, or other persons arising from the allegations of sex discrimination.” (emphasis added).
An emergency removal does not have to be a complete ban from campus. Schools can remove a respondent from portions of its education programs or activities, such as removal from a certain club or class.
Understanding Immediate vs. Imminent Threats
It’s important to note that schools are permitted to differentiate between an immediate threat (a threat of instant harm) and an imminent threat (a threat of impending or looming harm).
If a school has reason to believe that a respondent poses an immediate threat, the school may take action prior to conducting a safety and risk assessment, but the school must involve law enforcement.
Regardless of whether a school believes that a student poses an immediate threat or an imminent threat, the school must provide the accused student with an opportunity to challenge the removal decision.
How We Help Students Facing Emergency Removal
We have years of experience supporting students facing emergency removal, which is invaluable to accused students particularly because there is no prescribed list of factors that schools consider when making an emergency removal determination. The law affords schools discretion and flexibility in how they conduct individualized safety and risk analysis.
As experienced campus sexual misconduct lawyers, we work with accused students to prepare them to present at emergency removal hearings. In doing so, we help the student address considerations like the following:
- Does the respondent have a propensity, opportunity, and/or ability to carry out a stated or potential threat?
- Does the respondent have prior criminal history or a disciplinary record?
- Does the respondent present a threat to physical health or safety, which is different from a person’s emotional well-being? (Emergency removal is not intended to address a threat to a person’s emotional health. Considerations related to a complainant’s mental health should be addressed through supportive measures.)
- Did the respondent make a threat of self-harm after being accused?
- Are there disability laws that should impact the removal decision?
There’s Still Hope for Accused Students
Even if a respondent is emergency removed from campus and placed on an interim suspension, that does not mean there is no hope for the student or that a finding of responsibility for a policy violation is a foregone conclusion. A skilled Title IX lawyer can still work with the accused student to defend against the report.
We have successfully defended students in various stages of campus sexual misconduct proceedings, ranging from an investigation to a hearing, and even in appeal proceedings.
Call us at 216-716-5630 to speak with an experienced Title IX attorney and ensure your student’s rights are protected.
Related: Title IX and Disability Rights: Accommodation for All Students