Every year tens of thousands of students attend private and public colleges and universities throughout Central and Upstate New York. Students may be attending schools far away from home, family and networks of support. In such circumstances, students can find themselves running afoul of, or in trouble with, the law. Matthew Jubelt regularly provides, advice, counsel, and representations to students at Cazenovia College, Colgate University, SUNY Morrisville College, and Syracuse University.
Collegiate Misconduct frequently involves the following allegations: Illegal Drugs or Narcotics; Computer Crimes (unauthorized access); Theft; Assault & Battery; or Property Damage. In each case with a collegiate context special care must be given. It is important that students and their families understand how important it is to speak with an experienced criminal defense attorney at the earliest opportunity because a criminal record can limit future employment opportunities, professional licensure, and access to student aid. Do not let a criminal charge unnecessarily taint a future that is only at its inception.
Title IX Sexual Assault / Harassments: Beginning in August of 2020, the Department of Education issued new regulations ensuring due process rights for those accused of sexual harassment and assault including live hearings with the right to cross-examination by an attorney. On August 24, 2021, the Department of Education issued additional Title IX guidance that rolls back a student's due process right to confront his or her accuser(s). The Department of Education will immediately cease enforcing the prohibition on considering statements made by witnesses or parties who do not subject themselves to cross-examination. As a result, institutions of learning are revising their codes of conduct to allow consideration of an accuser's statement that can remain untested by the crucible of cross-examination.
As of August 2020, the Department of Education defined sexual harassment as unwelcome conduct that is so “severe, pervasive, and objectively offensive that it effectively denies a person equal access” to educational opportunities. The definition also includes quid pro quo sexual conduct as well as prohibited sex offenses, such as domestic violence, stalking, and sexual assault.
A school's obligation to respond to reports of sexual harassment is triggered when a school has "actual knowledge" of the violation. During an investigation into a formal Title IX complaint, the school bears the burden of gathering sufficient evidence to reach a determination of responsibility. During its investigation, Schools must not restrict rights protected under the U.S. Constitution, including the First Amendment, Fifth Amendment right to remain silent and avoid self-incrimination, and Fourteenth Amendment, when complying with Title IX. The rule provides protection of confidential information during the investigation stage, provides equal opportunity of either party to discuss, investigate, gather and present evidence at a hearing. For a hearing at a post-secondary institution, the party's attorney may cross-examine witnesses and challenge evidence, and introduce their own exonerating evidence. Title IX does not adopt the Federal Rules of Evidence for hearings, and instead uses “relevance” as the sole admissibility criterion. See § 106.45(b)(1)(ii) (the recipient's grievance process must provide for objective evaluation of all relevant evidence, including evidence that is inculpatory and exculpatory).The evidentiary standard may be either preponderance or a clear and convincing standard followed by a formal appellate process.
Following the filing of a formal complaint, the school has the discretion to facilitate an informal resolution such as mediation or restorative justice, so long as both parties give voluntary, informed, written consent to attempt informal resolution. A school may not require as a condition of enrollment or continuing enrollment, or employment or continuing employment, or enjoyment of any other right, waiver of the right to a formal investigation and adjudication of formal complaints of sexual harassment. Similarly, a school may not require the parties to participate in an informal resolution process and may not offer an informal resolution process unless a formal complaint is filed. At any time prior to agreeing to a resolution, any party has the right to withdraw from the informal resolution process and resume the grievance process with respect to the formal complaint.
Title IX of the Education Amendments of 1972 (Title IX) prohibits discrimination based on sex in education programs and activities that receive federal financial assistance. Title IX states “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance[.]” All federal agencies that provide grants of financial assistance are required to enforce Title IX's nondiscrimination mandate. The U.S. Department of Education (Department) gives grants of financial assistance to schools and colleges and to certain other entities, including vocational rehabilitation programs and libraries.
