If you’ve been accused of a crime in America, you have the right to counsel (attorney) and the right to cross-examine your accuser, right? What if you’ve been accused of sexual assault on a university or other school campus? Spoiler alert: The answer is “not for much longer.” Expect changes to the guidelines that regulate Title IX investigations.

In the court of law, the right to counsel and the right to cross-examine your accuser are fundamental and necessary rights for justice to prevail. As Americans, we have long agreed on this subject, and most recognize that many injustices would occur if these rights were taken away. We cemented this agreement in the constitution and it is the law of the land for criminal prosecutions.

What about Title IX investigations? The current Devos Title IX guidelines, which regulate such assault investigations on K-12 and college campuses were established in 2020. They require universities to use a live hearing model, in which advisers (counsel/attorney) for the complainant (accuser) and the respondent (accused) are permitted to cross-examine the other party and any witnesses. If justice is the aim, this makes sense.

Justice

Justice should be the aim. The consequences are just as devastating for those found guilty in Title IX investigations as they are in a court of law, except for jail time. Some of those consequences are:

• loss of a university degree you might have worked 4 years for;
• inability to get a copy of your transcript to transfer to another school;
• school debt with no degree to show for it;
• loss of reputation and removal from associations;
• a finding in your school record that will prevent you from being accepted to another school even without transferring credits; and
• much, much more.

Yes, there are countless ruined lives and horror stories told by legitimate victims of assault, but also legitimate victims of false allegations. Why diminish the rights of either?

We ask because, for Title IX investigations conducted by universities, the rights of the accused are about to be diminished and stripped — again.

President Biden Reviews Title IX Policy

President Biden announced that, on March 8, 2021, he will sign an Executive Order directing the U.S. Department of Education to review those guidelines. According to a Huffington Post article, an administration official said the review is to “ensure consistency with the Biden-Harris administration’s policy that students be guaranteed education free from sexual violence.”

Justice be damned. The odds are that America’s agreed-upon rights to counsel and cross-examination of your accuser will be stripped during this review, which will result in guidelines much as we had before the 2020 changes. While a lawyer’s role was limited under the old guidelines, they did not prevent either the accused or the accuser from retaining a lawyer.

Title IX Investigation Defense

Prior to the 2020 changes, most university students and employees who were accused and subjected to a Title IX investigation, did hire a defense lawyer. The lawyer, however, did most of the work behind the scenes investigating evidence, brief writing, testimony preparation, and, while allowed to be present at meetings, was not allowed to speak.

The inability to cross-examine the accuser will, however, make it incredibly difficult for anyone who has been under such accusations to win a Title IX investigation. Universities also tend to heavily favor alleged victims for a number of reasons, which include liability exposure from potential lawsuits. Essentially, it will be like going to court and having the Judge give the same credibility to the victim’s statement as she would to a police officer’s.

Any changes by the Biden-Harris administration to existing Title IX guidelines will almost certainly make defending these types of accusations of assault and misconduct much more difficult. However, difficult is light years away from impossible. At Sherwood Boutique Litigation, our defense attorneys have defended many allegations well before the 2020 changes and are prepared for any difficulties the changes may impose.

We expect changes to the Title IX processes for Vanderbilt University, Belmont University, Tennessee State University (TSU), Lipscomb University, Austin Peay University, Middle Tennessee State University (MTSU), and other colleges throughout Tennessee and the rest of the country. We have linked the policies of some of those universities below.

Policies For Universities Near Nashville, Tennessee

VANDERBILT UNIVERSITY Policy and Other Resources
~ Sexual Misconduct Policy (August 14, 2020) \
~ Formal Grievance Protocol (the “Protocol”) is the provision of the overall Policy, but includes provisions mandated byTitle IX and its new regulations)
~ Student Accountability Policy (non-honor code)

BELMONT UNIVERSITY Policy
Sexual Misconduct Policy (August 14, 2020)

TENNESSEE STATE UNIVERSITY Policy
~ Sexual Misconduct Policy 07.04 (August 14, 2020)
~ Sexual Misconduct Policy 6.6.4 (for allegations arising before August 14, 2020)

LIPSCOMB UNIVERSITY Policy
~ Amended And Restated Sexual Misconduct And Sexual Harassment Policy (August 14, 2020)

MIDDLE STATE UNIVERSITY Policy
~ Policy 29 – Title IX Compliance
~ Policy 27 Sexual Misconduct Not Governed by Title IX

UNIVERSITY OF TENNESSEE Policy
~ Policy on Sexual Assault, Sexual Harassment, Dating and Domestic Violence, and Stalking (August 2020)

AUSTIN PEAY UNIVERSITY Policy
~ Sexual Misconduct/Title IX Guidelines