Jay Karahan Law PLLC is currently working on a Title IX case with another prominent Houston attorney involving a university’s recent expulsion of a college student accused of misconduct.
Title IX is part of the Education Act of 1972 that prohibits discrimination on the basis of sex in any federally funded education program or activity. This effectively requires equal opportunities in recruitment, sports and curriculum, as well as protection against sexual harassment and assault. Historically, federally funded schools have been allowed to investigate and “adjudicate” all allegations with an internal process that does not apply traditional judicial standards of procedural due process. Instead, Title IX school misconduct “investigations” are internal, which means that the “investigators” and conduct panel decisionmakers are often teachers and other school administrative officials acting in a volunteer capacity. School administration officials are very sensitive about how these cases are resolved because federal funding to their schools hang in the balance. School conduct hearing rules and procedural practices governing the adjudication of the internal investigations may or may not allow witnesses to testify, or to even allow legal representation at the hearing. Once a “verdict” is rendered by these conduct panels, there are scant, narrow options to appeal and to reverse their decisions other than pursuing expensive civil litigation to seek damages for unconstitutional deprivation of property rights. Since completing one’s education has been ruled a constitutional property right the federal courts have consistently held that procedural due process is required before depriving students of their education.
Recently, in response to federal court rulings, the US Department of Education has published for public comment new regulations requiring more stringent procedural due process, including the right to counsel, the right to call witnesses to testify at hearings, and the right to cross-examination of accusers and witnesses. When these regulations become active, accused students will have the opportunity to have their cases resolved on a more level playing field than has been the case in the past.
I urge any accused college student and all parents of such students to take any kind of school misconduct allegation very seriously. They should consider immediately retaining experienced legal counsel to properly investigate and aggressively defend Title IX cases, even though they are not heard in a courtroom at the university administrative level. Evidence – witnesses and their recollections, e-mail and texting records, and other physical evidence – can disappear quickly in a college setting, and an aggressive parallel, independent investigation can be the key to a successful defense to a Title IX accusation.