Jauregui Law Office Quora Answer: Is there bias during a school's sexual misconduct investigation under Title IX, who gathers the information, and how is privacy protected if at all?
NEVER MIND PRIVACY: As a male sexual misconduct respondent you should hit the ground running during the investigation phase with a legal team that obtains all your available evidence because the school’s Title IX team will not do a fair job documenting this evidence, because the school’s confidentiality policy works to your disadvantage, because Federal Guidance entitles you to gather it, because the policy favors your accuser, and because you will not get a second chance to obtain this evidence:
The Title IX staff will not do a fair job documenting the man’s defense.
Statistically speaking a man responding to a complaint of sexual misconduct from a fellow female student has a high chance of being found at fault. The consequence can be devastating and can include being banned from campus, suspended for a period of years, if not expelled, and certainly being socially, financially, and academically humiliated. This means that any man facing a sexual misconduct allegation needs to do a lot of leg work, hopefully with the help of a legal team, from the get go.
This leg work requires documentation of everything that is in your favor and available to you from interviews—be it to show that the Title IX staff’s results are an Erroneous Outcome (so your attorneys show that "the claim is that the plaintiff was innocent and wrongly found to have committed an offense") meaning that you got disciplined by mistake because they assumed that as the man you were the rapist as all men do that, or be it to show that the Title IX staff acted with Selective Enforcement (so your attorneys show that you were “… treated more harshly than similarly situated persons of another race” meaning that, for example, the son of a big donor was accused but did not get the same discipline (1).
In all instances, what you desperately need to document is circumstantial evidence of male bias as the reason for the Title IX staff taking action against you, be it a no-contact order, suspension, or expulsion. That evidence is crucial and the school will make an effort to keep it from you simply by enforcing the system already in place.
The school’s Confidentiality Policy disadvantages your defense and favors the school’s ability to defend its brand.
Schools, through their Title IX staff, put themselves on the driver’s seat of sexual misconduct investigations and in some instances tell both the complainant and the respondent that there is an absolute and strict confidential treatment for all these facts. Respondents often assume this means they cannot talk to their witnesses or document their case on their own. This means the school becomes the only one with access to and control of any information; including information that is necessary to prevent the man responding from being disciplined.
Schools generally restrain student speech on campus, and in the Title IX student misconduct area, they certainly have self-serving confidentiality protocols. When followed naively by the respondents, these protocols leave the school as the sole storyteller. The school then becomes the sole gatherer of a documentary record that supports the eventual stories of this misconduct. This leads to unfair results. See for example the most current version of the University of Pennsylvania’s confidentiality for student on student complaints which blatantly fails to tell the male respondent that he too can share information (2). In that context, if the student means to survive the misconduct process, he should actively go out and gather information:
“B. Confidentiality
Confidentiality is of critical importance in ensuring that these sensitive matters are handled appropriately. The University has an obligation to respond to violations of its Sexual Misconduct Policy as fairly and expeditiously as possible when a complaint is received. University staff and faculty may share information with others who have a legitimate need to know in order to fairly and effectively address complaints, but the information should be considered confidential and should be protected to the extent possible consistent with legal obligations. Such administrators may include, for example those in the Office of the Vice Provost for University Life, the Office of the Associate Vice President and Title IX Officer (AVP), the Division of Public Safety, the Office of General Counsel, Counseling and Psychological Services, Student Health Service, and academic advising offices.” [Emphasis added].
Available at: https://catalog.upenn.edu/pennbook/sexual-misconduct-resource-offices-complaint-procedures/#Student_Disciplinary
Schools purposely fail to tell you that the DOE Regulations on Title IX give you the same rights to gather information that the school grants itself.
The Federal Government’s Department of Education guidance on Title IX states that you can talk to anyone the school talks to, and to anyone that has evidence for your defense, without restriction:
“Question 6: What constitutes an “equitable” investigation?
…
Any rights or opportunities that a school makes available to one party during the investigation should be made available to the other party on equal terms. Restricting the ability of either party to discuss the investigation (e.g., through “gag orders”) is likely to deprive the parties of the ability to obtain and present evidence or otherwise to defend their interests and therefore is likely inequitable. Training materials or investigative techniques and approaches that apply sex stereotypes or generalizations may violate Title IX and should be avoided so that the investigation proceeds objectively and impartially.”
OCR Sept. 2017 Q&A on Campus Sexual Misconduct, No. 6, available at:
https://www2.ed.gov/about/offices/list/ocr/docs/qa-title-ix-201709.pdf
Yet your school’s Title IX team will most likely tell you that you cannot talk to witnesses as this violates confidentiality. Defending yourself does not violate confidentiality. To not gather your evidence dooms your case. One potential way to further protect you while actually gathering your information involves your legal team’s drafting of non-disclosure agreements that actually bind the persons from whom you gather your evidence into confidentiality while at the same time allowing you to gather all the information possible to mount your defense from them. Of course you will always have a profound ethical problem if you interview someone who tells you, confidentially, that he saw you act in ways that you do not remember having acted.
The School has constructed confidentiality to ostensibly benefit your accuser.
If you still doubt whose confidentiality your school cares about—if it cares about anyone’s at all—consider that in an additional instance of victim-centered, anti-male biased provisions, typically, the school allows only the complainant to request confidentiality, but makes no such promise to you, the respondent. Thus, school confidentiality policies work against the respondent, by making his name public and by tricking the respondent into not gathering evidence, while granting the complainant the protection of anonymity. The resulting male-biased construction of school confidentiality policies in sexual misconduct typically prevents you from gathering evidence with one-sided confidentiality offered as a facetious rationale. See for example the most current version of the University of Pennsylvania’s student sexual misconduct policy allowing only the complainant the benefit of confidentiality:
“5. COMPLAINANT REQUEST FOR CONFIDENTIALITY
The University is required by Title IX to weigh the complainant’s request for confidentiality/ privacy with the University’s commitment to provide a reasonably safe and nondiscriminatory environment. In situations where a complainant requests confidentiality, the University’s ability to investigate and respond to the allegations may be limited. The IO will notify the complainant if the University cannot, in unusual cases, maintain the complainant’s confidentiality/privacy. The complainant’s and respondent’s identities will only be revealed to those individuals who need to know their names in order to investigate or adjudicate the complaint or provide interim measures. If the University becomes aware of a pattern of behavior by one or more respondents, the University will take appropriate action in an attempt to protect the University community.” [Emphasis added].
Available at: https://catalog.upenn.edu/pennbook/sexual-misconduct-resource-offices-complaint-procedures/#Student_Disciplinary
What if you do not document, with a legal team, evidence for your defense?
More than likely, you will be found responsible, you will be suspended, you will lose your good name, and you will find the courthouses closed to your claim for redemption because you have no evidence to back you up. For example, Princeton University just won a case on appeal to the Third Circuit because the complainant, John Doe, had no evidence of Princeton’s male bias available to him, so he could not give enough detail in his lawsuit. The unfairness, of course, is the fact that only Princeton had that information to begin with, but kept it well hidden away from Mr. Doe. This is how the 3rd Circuit found the flaw on Mr. Doe instead of on Princeton:
“Doe has not pleaded facts showing Princeton treated him differently because of his sex. His allegations that he “would not have been subject to Princeton’s discriminatory acts if he were a female victim,” Compl. ¶ 174, and that “Princeton also does not believe male students can be victims,” Compl. ¶ 127, are too “generalized” and “conclusory” to raise an inference of disparate treatment, Doe v. Columbia Coll. Chi., 933 F.3d 849, 855 (7th Cir. 2019); Yusuf v. Vassar Coll., 35 F.3d 709, 715 (2d Cir. 1994). Moreover, Doe alleged no facts reflecting that the disciplinary process and results for female victims are different from men. See Columbia Coll. Chi., 933 F.3d at 856 (holding that plaintiff’s allegations regarding procedural improprieties were insufficient when he never alleged that female students did not face those improprieties).”
John Doe v. Princeton (No 18-1477 of Oct. 25, 2019 at 5-6) (3).
At all points the appellate decision punts on the paradox: How is Mr. Doe to present evidence required for his case if that evidence is with Princeton? The only answer, for the time being, is by gathering all available evidence from the get go (4). This may not have been possible for Mr. Doe.
Dangerous lack of detail for your lawsuit (or in-school defense) is always going to happen if you rely on the Title IX staff. It is inevitable that the Title IX staff will not help you because you show evidence of male bias (in your defense) through the patterns of discrimination of the Title IX investigations (to their professional detriment). These patterns cannot be identified in the beginning because all these investigations are kept confidential by the school. Thus, schools do not do a fair job investigating, but they do a superb job of keeping their unfair job under wraps, and there is no way to bring them to justice unless you hit the ground running and secure your evidence on your own.
If you still think your school’s Title IX staff will do right by you and this lulls you into not getting involved in gathering all the information you can for your defense, see for example the most current version of the University of Pennsylvania’s policy and its false and meaningless promises to both you and the complainant:
“2. RIGHTS AND PROTECTIONS FOR COMPLAINANT AND RESPONDENT
(a) The complainant and respondent have the right to a process that is fundamentally fair, and free of bias or prejudice.
(b) The complainant and respondent have the right to be treated with respect, dignity, sensitivity, and fairness throughout the entire process.” [Emphasis added].
Available at: https://catalog.upenn.edu/pennbook/sexual-misconduct-resource-offices-complaint-procedures/#Student_Disciplinary
Now that you read that, ask yourself, where in the world is that definition of dignity coming from when one party is given the dignity of confidentiality and the other is not? Do you still think the systemic implementation of these structurally biased policies guarantees dignity for your cause?
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.
Endnotes:
(1) Yusuf v. Vassar Coll., 35 F.3d 709 (2d Cir. 1994).
(2) The confidentiality policies at Temple University and at Drexel University basically have the same provisions because they are standard in today’s campus environment.
Temple’s “Preventing and Addressing Sexual Harassment” policy says that:
“2. Confidentiality During informal resolution, all reasonable efforts will be made to insure the confidentiality of information received, including the identities of the parties; however, appropriate university officials, including the university’s Title IX Coordinator, may be notified in order to best address complaints and ensure the safety of the university community. If, due to the circumstances of the alleged harassment, it is not possible to conduct a review of, or resolve the complaint and continue to maintain the confidentiality of the information received, the reporting party will be informed and be given the options of proceeding (with disclosure of identity) or withdrawing from the informal resolution process.”
Available at: https://secretary.temple.edu/sites/secretary/files/policies/04.82.01.pdf
Drexel’s OED-3 says that:
“Request for Confidentiality: Where the University has received a report of sexual or gender based harassment or misconduct, but the Complainant requests that their identity remain confidential or that the University not pursue an investigation, the University must balance this request in the context of its responsibility to provide a safe and non-discriminatory environment for all University community members. The University will take all reasonable steps to investigate and respond to the complaint consistent with the request for confidentiality or request not to pursue an investigation, but its ability to investigate may be limited by the request for confidentiality. Under these circumstances, the University will weigh the request for confidentiality against the following factors: the seriousness of the alleged harassment, any potential threats to community safety, the respective ages and positions of the Complainant and the Respondent, whether there have been other harassment or misconduct complaints against the Respondent, and the Respondent’s right to receive information under applicable law. At all times, the University will seek to respect the request of the Complainant, and where it cannot do so, the University will consult with the Complainant and keep them informed about the chosen course of action.
Available at:
https://drexel.edu/oed/policies/overview/OED-3/
(3) The appellate court decision on Doe v. Princeton is available here:
https://images.law.com/contrib/content/uploads/documents/399/33779/Doe-v.-Princeton.pdf
(4) The alternative, which should reach the Supreme Court soon enough, is the enlightened standard in Doe v. Columbia Univ., 831 F.3d 46 (2d Cir. 2016) that exists in the Second Circuit and which allows plaintiffs to file claims in the good faith expectation that the school has evidence to prove their point. The Princeton decision considers that feature of Doe v. Columbia but still insists that the respondent now turned plaintiff must provide some detail (which is what his lawyers should gather from the start). As the Third circuit put it:
“That is an incorrect articulation of our pleading standard for discrimination claims. Rather, the pleading must set forth some facts—beyond conclusions—that raise an inference of disparate treatment. See, e.g., Connelly v. Lane Constr. Corp., 809 F.3d 780, 791 (3d Cir. 2016) (pleading’s factual allegations sufficient when plaintiff alleged her employer failed to rehire her despite rehiring six other male employees, two with less seniority).” Princeton, id., footnote 3.