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Colorado Criminal Defense and Personal Injury Attorneys

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Title IX Defense Attorney

What is Title IX and how does it apply to me?

Title IX of the Education Amendments of 1972 (“Title IX”), 20 U.S.C. §1681 et seq., is a Federal civil rights law that prohibits discrimination on the basis of sex in education programs and activities. All public and private elementary and secondary schools, school districts, colleges, and universities (“school”) receiving any Federal funds must comply with Title IX.

If you attend a private school and that school accepts any federal funds your private school is obligated like every public school to comply with and enforce the provisions of Title IX.

Under Title IX, discrimination on the basis of sex includes claims of sexual harassment or sexual violence, such as rape, sexual assault, sexual battery, and sexual coercion.

Under Title IX every school must create procedures for students to file complaints for discrimination – including sexual harassment or sexual violence and every school must develop a plan for those complaints to be adjudicated.

Mertes Law lawyers are experienced Title IX attorneys whose advice and assistance can make a winning difference in your case.

What is a Title IX Respondent?

If you have been accused of sexual harassment or sexual violence in your school you are a respondent – that is someone who is responding to a Title IX complaint.

The prohibitions on sexual harassment or sexual violence in a Title IX investigation track what you would find to be prohibited sexual conduct found in most criminal codes, which also means that if you are the target of a Title IX investigation by your school you must assume that you are, or could also be, the focus of a parallel criminal investigation.

To put things in perspective – in a Title IX case you are facing a potential school sanction which can include suspension, expulsion, or even retroactive withdrawal of an earned degree, as well as the stigma that comes from having a school transcript documenting those sanctions by your school. This goes further when you consider the secondary effect of school sanctions on your ability to enroll in other schools and compete for that perfect job. In the context of a criminal case – you can be prosecuted and, if the charges are proven beyond a reasonable doubt, be sentenced to jail, prison, or a term of supervised probation. Individuals who are convicted of sex crimes are required to be evaluated, treated, and registered as sex offenders.

Lack of consent is often a lynch-pin allegation in a Title IX case. This means that you can be accused of sexual misconduct after what you thought was a consensual sexual encounter because one party asserts that they were too intoxicated to consent, or that they did not consent to every aspect of the sexual encounter. A thorough investigation of the claim by an experienced Title IX lawyer is often the key to winning a case involving questions of consent.

If you are a student or school employee who has just learned of a Title IX complaint or investigation focused on you – it is imperative that you have an experienced student conduct and Title IX defense attorney by your side from the very beginning.

What rights do I have in a Title IX investigation?

The United States Department of Education has issued new Title IX rules, effective August 14, 2020, which provide respondent students with the following rights:

You must be provided with written notice of the allegations made by your accuser.

During the grievance process and when investigating an accuser’s claim the burden of gathering evidence and burden of proof must remain on schools, not on either party. Allegations must be proven, at a minimum, by a preponderance of the evidence.

Your school must provide you with the opportunity to present fact and expert witnesses and to present exculpatory evidence – that is, evidence which tends to show that you are not responsible for violating Title IX and the school’s code of conduct.

Schools are prohibited from implementing gag orders that block you from discussing the allegations or seeking to gather evidence.

You have the right to choose your own Title IX defense attorney, or other advisor, to help you navigate and defend against the allegations made against you.

Your school must provide you with written notice of any investigative interviews, meetings, or hearings.

Your school must send you, and your Title IX defense lawyer, evidence which is directly related to the allegations, in electronic format or hard copy, within at least 10 days for the parties to inspect, review, and respond to the evidence.

Your school is required to send you, and your Title IX defense attorney, an investigative report that fairly summarizes relevant evidence, in electronic format or hard copy, providing a minimum of 10 days for the parties to respond. –

Your school is required to dismiss allegations of conduct that do not meet the Title IX definition of sexual harassment or did not occur in a school’s education program or activity against a person in the U.S. However, such dismissal is only for Title IX purposes and does not preclude the school from addressing the conduct in any manner the school deems appropriate.

Your school must provide you with written notice of a dismissal (mandatory or discretionary) and the reasons for the dismissal.

Your school must protect the privacy of your medical, psychological, and similar treatment records. This means that your school cannot access private records unless the school obtains your voluntary, written consent to do so.

Title IX rules require that post-secondary schools investigating a Title IX claim provide you with a “live hearing with cross-examination.” While there is no requirement that middle or high schools provide a live hearing, they are permitted if the school so provides. All cross-examination must be conducted by your Title IX advisor, and not by you directly. This is yet another reason why your greatest protection as an accused student comes from retaining an experienced Title IX defense attorney.

Your school is required to permit your Title IX defense lawyer to cross-examine your accuser about prior sexual behavior, normally restricted by rape shield protections, when your examination is offered to prove that someone other than you committed the alleged misconduct or when offered to prove consent.

Your school must provide you with an opportunity to appeal an adverse finding of responsibility.

Contact the Mertes Law Title IX Defense Lawyers

Mertes Law is a premier Title IX defense firm located in Boulder, Colorado and specializing in advising and assisting accused students with a focused and aggressive defense to Title IX allegations of sexual misconduct. If you suspect that you may be under investigation by your school for an allegation of sexual misconduct, have received a Notice of Investigation or Notice of Allegation electronically or by mail, or received a phone call from a Title IX investigator, you need to contact the Title IX attorneys at Mertes Law today. Call 303-440-0123 now for a free consultation.

Title IX FAQ

What is a Title IX Notice of Investigation or Allegation?

Title IX rules require that you be provided with Notice of a Title IX investigation. At most schools this comes in the form of an email or letter which is captioned “Notice of Investigation” (NOI) or “Notice of Allegation” (NOA). Receiving an NOI or NOA means that you have been targeted for investigation of sexual misconduct by your school and receipt of this Notice should trigger an immediate response: get the best Title IX legal representation on your case now.

What does it mean when my school has signed a Memorandum of Understanding with law enforcement?

A “Memorandum of Understanding” or “MOU” is an agreement signed by officials of your school and law enforcement which expressly allows Title IX investigators to have some involvement in police investigations – often this begins with the interview of an alleged victim. MOU’s blur the line between a Title IX investigation and a criminal prosecution and arguably make school investigators agents of the police. MOU’s are one more reason why you need an attorney experienced in both criminal defense and defense of a Title IX claim on your side.

What changes did the new Title IX Rules bring and when do they begin to apply?

Effective August 14, 2020 newly issued Title IX Rules take effect. Prior to the new rules schools could play “hide the ball” with evidence – even demanding that you provide a statement BEFORE you’d seen what your accuser and other witnesses had to say. Prior to the new rules schools were not required to give you an actual live hearing – and in a majority of schools Title IX officials were the investigators, judge and jury rolled into one. Prior to the new rules you were not allowed to directly question your accuser – now you can, but only through your advisor. Prior to the new rules schools were not required to provide you with an in-school appeal if you were found to be responsible for sexual misconduct – meaning that your only recourse for a flawed investigation or violation of your Constitutional Right to Due Process was by taking legal action against your school.

What can a Title IX defense attorney do to help?

An experienced Title IX defense attorney assists a respondent student by: explaining the process and policies used by their school, explaining the rights of the respondent, directing a thorough and aggressive investigation, providing preparation for an initial interview with investigators and a contested hearing where the respondent student faces cross-examination. A Title IX defense lawyer will work with a respondent student to prepare a blueprint for the presentation of a compelling case in which the respondent student’s truth is unmistakably laid out and explained and where the respondent student’s opportunity to be found not responsible is enhanced. A Title IX lawyer will be able to identify and challenge those schools who are not complying with the requirements of Title IX and a respondent student’s Constitutional Right of Due Process. An effective Title IX lawyer will walk a respondent student through the areas of greatest difficulty including those times when a respondent student faces having both a criminal investigation and a Title IX inquiry.

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