DOES MY PENNSYLVANIA SCHOOL FOLLOW TITLE IX FOR RESOLVING THE SEXUAL MISCONDUCT POLICY COMPLAINT I JUST RECEIVED? YES.
You received an email from a Title IX coordinator you had never heard from before saying that she has received a complaint that you may have violated your school’s sexual harassment, or sexual misconduct policy. Obviously you panic. What else do you do?
You can read the school’s harassment policy, and you should, because it changes:
Here is Cabrini College’s:
https://www.cabrini.edu/about/departments/policies/sexual-misconduct-and-sexual-harassment-policy
And down the street, here’s Villanova University’s:
https://studenthandbook.villanova.edu/sexual-misconduct-policy
But generally speaking you hope that your school’s harassment policy follows Title IX guidance, which you find here:
https://www2.ed.gov/policy/rights/guid/ocr/sexoverview.html
Specifically, the “regs” which changed last time to make the process a little bit fairer for men, and are about to change the other way, can be found here:
https://www.ecfr.gov/current/title-34/subtitle-B/chapter-I/part-106
Now you can read this guidance, but it includes many topics, over many issues. You will waste precious time when what you really need to do is hire a Title IX/sexual harassment lawyer who has actual experience with the usual complaints between students like:
• Sexual assault
• Intimate partner violence
For schools that are either part of the Penn State system, or just public universities in Pennsylvania, say for example Temple University in the city of Philadelphia, https://www.temple.edu/, or Westchester University, very much out in the Delaware Valley suburbs, https://www.wcupa.edu/, these complaints can be called:
• Regulatory Hostile Environment Sexual Harassment
• Non-Regulatory Hostile Environment Sexual Harassment
But the end result is the same: Most likely someone you had no idea was angry at you has just put your career in jeopardy. In our experience, overwhelmingly, alcohol was involved and someone, at some point, has claimed they were so intoxicated they became incapacitated. All school policies we know of provide for this scenario in a way that complies with Title IX. For example, here’s the Pratt Institute’s view on what alcohol does to sex:
“Consent cannot be given when a person is incapacitated, which occurs when an individual lacks the ability to knowingly choose to participate in sexual activity. Incapacitation may be caused by the lack of consciousness or being asleep, being involuntarily restrained, or if an individual otherwise cannot consent. Depending on the degree of intoxication, someone who is under the influence of alcohol, drugs, or other intoxicants may be incapacitated and therefore unable to consent.”
Here is Lafayette University’s:
“Incapacitation: A person cannot consent if they are unable to understand what is happening or is disoriented, helpless, asleep, or unconscious, for any reason, including by alcohol or other drugs. As stated above, a Respondent violates this policy if they engage in sexual activity with someone who is incapable of giving consent.
It is a defense to a sexual assault policy violation that the Respondent neither knew nor should have known the Complainant to be physically or mentally incapacitated.”
See the complexity? Well, if you do, at this point you need a lawyer with Title IX experience. Like us. Why? Because we have helped many students for a long time now go through these very same crises. Why else? Because we know the regulatory environment and the school’s culture—remember, when dealing with your school they see you as a student, not as a prisoner. If the school saw you as a prisoner, you would hire a criminal lawyer. But now they see you as a student, so you hire a lawyer like us with experience in education law.
Our experience in helping students with Title IX and sexual harassment complaints in college lets us guide you through the pain of this process. We make sure that your case fits within your school’s harassment policy and the Department of Education’s Title IX guidance. This work probably includes our making sure that your school does this:
• You should receive a notice that lets you know with detail what the other student says you did to her.
• You should be able to state your side of that story.
• Before you state your side of the story you should be able to hire a lawyer and that lawyer, called an advisor, should be us.
• The schools’ Title IX investigator should agree to interview you with your lawyer next to you.
• The school’s Title IX investigator should agree to let you and your lawyer make comments to the investigative report.
And if unfortunately the situation gets to a hearing, the result of which can very likely be your expulsion, we make sure that the school’s Title IX coordinator should let you:
• Appear at a hearing with your lawyer
• Cross examine the woman who is complaining against you.
• Cross examine any witnesses that woman has
• And be next to you when they cross examine you.
Like everything else in the student sexual harassment and Title IX world, these bullet points are just suggestions and subject to exceptions: for example, the student who complained against you can refuse to be cross-examined; so can you.
Like everything else in the world of student on student claims of sexual assault, what you need is a lawyer. Now.
Raul Jauregui
Jauregui Law Firm
I am an attorney and I defend mostly respondents of sexual misconduct in colleges or universities. This is absolutely not my legal opinion or my legal advice, but rather survey of the Title IX topic. If you’re in this situation, in any way, consult a lawyer now.
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