What to Expect and Do if Your Student Has Been Wrongfully Accused of Sexual Misconduct
What follows is a compilation of thoughts and reflections from FACE parents whose students have been subjected to wrongful accusations of sexual misconduct or harassment on campuses.
This Advice from Parents is intended to help you and your student prepare for a process that may contradict everything you believe about how a fair, transparent, and unbiased adjudication should be conducted in America. These parents’ experiences show how inequitable and often result-driven Title IX disciplinary proceedings can be. This does not mean that every college or university process will be unfair, but those that are have traumatized and sometimes derailed the educational and career plans of hundreds, if not thousands, of young students.
Be sure your student reads the Advice from Students, and you both read the Advice from Attorneys. We also recommend that you attend a FACE Meet & Greet if you are able. [1]
Above all, please know that you are not alone; there are over one thousand families at FACE who have been in your exact position. Reach out to them through FACE’s website contact form here.
Expect That Your Student May Be Suspended or Expelled
We understand how crazy that sounds … and too horrible even to contemplate, but your student may be suspended and perhaps expelled despite the fact that he or she [2] is innocent, whether or not there is proof of innocence, and despite no indication of guilt aside from the allegations.
Unfortunately, too many of our nation’s colleges and universities choose to weigh the threat of federal sanctions, possible loss of funding, or the risk of damage to the school’s reputation as more important than truth and justice. [3] Self-interest and funding all too often prevail.
We have found it extremely helpful, both emotionally and as questions arise, for new families to connect with other students and families who have gone through these proceedings, and the FACE website has a contact form through which you can request to be connected. However, be aware that we must carefully vet all new families and students to ensure everyone’s information is protected from disclosure. We take confidentiality very seriously.
Do Get an Experienced Lawyer - Right Away – If You Can Afford One
We highly recommend retaining a lawyer with specific experience with Title IX sexual misconduct proceedings if you can afford to do so. [4] These cases are unique and difficult to navigate, and although your first thought may be to consult a criminal attorney, that is often not the best choice. [5] If you must use an inexperienced lawyer, such as a member of your family or a friend, it is critical that they consult with a lawyer who is experienced in this area.
Though your lawyer may not be allowed to participate in any school meetings, hearings, or conversations with school administrators, an experienced lawyer can still advise and prepare your student on what to say and do and ensure your student’s rights are recognized.
If you cannot afford legal assistance, it is even more important that you connect with other FACE families who can offer you a wealth of knowledge and experience. When a family does not have the resources to retain an attorney, in a very limited number of cases, we have been able to find attorneys who will at least consult with or sometimes represent students at a reduced rate.
Do Not Allow Your Student to Speak to Anyone On Campus About the Allegations Unless Accompanied by an Advocate
This is important because everything a student says or does can be used against him or her, not only in the Title IX proceeding but potentially in a court of law.
Though campus officials may seem fair-minded and sympathetic, do not trust this: too many FACE students have been told by campus personnel to “just tell the truth, and it will be fine,” only to discover their own words have been twisted and used to suspend or expel them.
Students should immediately stop discussing any details of the situation with anyone except an attorney, family members, or an advocate who is unrelated to the school; words and actions can be misinterpreted and taken out of context.
Under no circumstances should your student communicate with the complainant or those connected with him/her. Any efforts to do so can be seen as retaliation.
Not speaking with others is especially important because there is no assurance criminal charges will not be filed against your student. This is especially important if your student has not yet been informed of the specific allegations. Make sure your student understands that anything said to university administrators, campus security, or even other students and professors can be subpoenaed for use in subsequent civil or criminal court proceedings.
Anything your student says can be used for these purposes regardless of how comfortable university officials attempt to make your student feel about speaking to them, and no matter their reassurances, that openness will ensure a better outcome.
Do Have Your Student Close All Social Media Accounts
Have your student shut down Facebook, Snapchat, Instagram, Twitter, LinkedIn or any other social media or public online accounts. Though everything on those sites may be intended as innocent fun, it can be used against your student. There is an additional danger with these sites if your student is attending or applying to transfer schools. We have had acceptances withdrawn and students dismissed from their schools.
Expect an Adversarial and Unsympathetic Campus Environment
As soon as the false allegation is made, your student’s campus life will change. As friends and acquaintances learn of the allegations, many will distance themselves. The student paper may report the allegation, and it may be posted on the university website. Whether or not your student’s name is used, students may learn his or her identity. Your student may be judged unfairly and isolated and sometimes taunted and publicly humiliated.
It is not uncommon for students accused of sexual misconduct to be kicked off sports teams, booted out of a fraternity, or ejected from campus housing. This will add an immense amount of stress and anxiety to your student’s life; your student will feel as if he or she is all alone and drowning and may descend into a deep depression.
Though you feel helpless as you watch this unfold, you must be strong, provide unconditional support to your student, and ensure he or she receives the psychological help needed. It is at this point that many students become despondent and suicidal, so you must stay close and monitor your student’s ability to cope.
In retrospect, many families believe they should have had their students withdraw and moved them home or transferred to another school as soon as possible after learning of the allegations. The damage done by leaving students on their campus for months while an “investigation” and “proceedings” were pending has left many with deep emotional scars.
A transfer is more easily accomplished before a transcript has been marked with a responsible finding, though questions on some transfer school applications may still ask about disciplinary matters. Many families order several official sealed transcripts at this stage and open one to ensure there are no notations. The rest can be used later for transfer school applications as long as they remain sealed. FACE also maintains a list of schools to which students have successfully transferred and can refer you to a college counselor who specializes in this area.
However, despite your student’s absence, the Title IX process likely will proceed. And even if your student is eventually found not responsible, the scars will not be easy to erase, nor will other students’ beliefs that your student is guilty. We have exonerated students unable to resume their educations years later due to the trauma of being falsely accused.
This experience will change the lives of every member of your family.
Expect a Lack of Support From Your Student’s School
The school may expect your student may be expected to go on with a normal academic life. The complainant will typically be allowed academic accommodations, offered extra help, given assignment extensions, and be allowed to retake courses. Your student may be denied any and all of these accommodations and expected to attend class, write papers, and take exams without additional support.
The complainant will also be offered a panoply of support from the school, including medical services, support assistance, and psychological counseling; none of this is required to be provided for your student.
Although faced with being branded what is effectively a sexual predator and losing everything your student has worked toward his or her entire life, it is expected that your student should be able to function as though none of this is happening.
Expect That Your Student Will Be Given Few Rights
The rights we expect as American citizens are not generally given to those accused of sexual misconduct on our nation’s campuses. The rationale for denying such rights is that these are “educational,” not criminal proceedings, though the process may very well be adversarial.
Students on college campuses are entitled to very little of what we in America have come to understand as “due process.” Public universities are generally required to provide at least notice of the accusations and the opportunity to be heard by an unbiased decision-maker.
If your student attends a private school, there is no due process required whatsoever; the school’s handbook or policies are considered a contract, and those provisions are the only conditions with which the school is legally obligated to comply unless state law requires more. [6]
Public or private, you likely will be told your student has rights, that there will be an investigation by properly trained employees, and assured the process will be fair and unbiased. You also may be told that your student has a right to have an advocate, [7] suggest witnesses, and appear at a hearing. It is possible some of this will not happen.
Yes, there will probably be some type of a proceeding, but for too many wrongfully accused students, this has been a “kangaroo court,” where hearsay is relied on as evidence, witnesses and hard evidence are ignored, questions to the complainant are denied or strictly limited, and, in some cases, the investigator may also decide your student’s fate. Similarly, any appeal may simply be rubber-stamped by whoever considers it.
Again, it will be very difficult to understand how this is allowed to happen in the United States. Unfortunately, on too many campuses, your student’s fate was sealed the day the accusation was received by the school’s Title IX office. In the past, there was pressure from the Department of Education’s Office for Civil Rights to find students responsible, but today, campus ideology, media, and the #MeToo movement have the same impact.
Thus, the school may feel compelled to find your student “responsible” and to expel him or her despite being unsure about the truth of the allegations. [8] Administrators will profess fairness and gender equality, but in reality, they most likely just want the situation to go away.
Do Scour the Student Handbook and Website for All Rules Pertaining to Title IX Violations and Proceedings
Familiarize yourself immediately with the school’s
(1) Title IX student disciplinary code to learn what procedures they have in place for handling these matters, including what rights have been promised to your student; and
(2) definitions of proscribed conduct under Title IX.
Be sure you know exactly what you are entitled to under your school policies. This information or links to it should have been provided to your student in any written notice of the allegations, but if not, be aware that this information may be scattered in different sections of the student website or handbook.
Unfortunately, some schools have a very problematic process that allows the investigator also to decide your student’s guilt, or offers a hearing only on appeal after a guilty finding. This process, often referred to as a “single investigator model,” is especially problematic if your school is a private one because the primary basis on which you can sue a private school is often the school’s failure to comply with its own rules. If your school is public, however, you may have constitutional rights to a hearing and may even be able to question your accuser through an advocate, depending on the state in which your school is located.
If the recently proposed Title IX regulations become final, and under some existing judicial precedent in certain districts, your student may be entitled to a live hearing. [9] You can find out more about these issues through FACE or by reading the FACE NPRM TITLE IX COMMENT. [10]
Do Document Everything, Including Any Deviations From School Policies
Above all, do not trust the school administration to abide by its own policies; your student must document every deviation from the school’s policies and procedural requirements. You and your student should also document and preserve all communications, records, and documents even remotely related to the allegations, including text messages, phone call records, and voice messages. Photographs can also be helpful. Document or keep notes of every conversation, including those with your attorney.
Insist that all correspondence from the university be delivered in writing. Do not allow your student to have any conversations with any administrator or university employee without a witness. In fact, ask to record every verbal conversation and document any refusal in writing.
Consider recording conversations by phone or in person without consent only if it is legally permissible to do so. Many states have laws that make this a crime unless both parties to the conversation consent. Consult an attorney to find out whether the state in which you are located (and the state to which you may be calling, if different) is a “one-party consent” or “two-party consent” state: one-party consent states don’t require asking permission to record someone, while two party states do.
Expect Your Student to Become Depressed, Despondent, and Possibly Suicidal
Your student will need a lot of emotional support. You also will need a lot of support. We suggest you hire a good therapist outside of the university as soon as your student is accused. Your student may face loneliness, depression, anxiety, and PTSD. Many FACE students report having considered suicide at one point or another. The toll on your student’s health - physical and mental - can be extensive. Remember though, mental health records can be subpoenaed in a subsequent lawsuit.
You and your student may also experience sleeplessness, depression, nightmares, anxiety, and panic attacks. We can almost guarantee you will likely be very, very angry for a very long time. Try to channel your anger into something productive. Volunteer to help others at FACE or for a community organization. Encourage your student to do so as well.
Both you and your student should try to keep a normal routine, eat healthy meals, and go to the gym. Remember that in the grand scheme of life, this is just a blip, and plenty of students have been suspended or even expelled from college for many different reasons.
Connecting with other students will show your student not only that there are situations that are much worse but also that there will be some way to move forward. It may be a different path, but there is almost always a way. Think creatively. For example, some students have completed college in other countries and volunteered for AmeriCorps, and others have chosen a new career, many in the legal field.
Expect That Some People, Even Close Friends and Family, Will Not Understand
To those who have never experienced university Title IX proceedings and do not understand the law, what you describe may seem impossible and unimaginable. They may doubt this could be allowed to happen in the United States and may even doubt your student’s innocence. Your description of the events will seem so surreal and unlike anything they have ever experienced that they won’t believe it is possible. That is, unless your student is a minority and, as sadly described by one mother of a minority student, “to us, this is just more of the same.”
When faced with doubters, remember how you would have reacted to such an outrageous account before you became aware of what was happening on our nation’s campuses. To help them understand, suggest they read articles such as Emily Yoffe’s “The College Rape Overcorrection;” [11] or books such as The Campus Rape Frenzy: The Attack on Due Process at America’s Universities by Stuart Taylor and KC Johnson, authors who discuss several FACE student stories in their book and also wrote about the Duke lacrosse case; [12] and Unwanted Advances: Sexual Paranoia Comes to Campus, by Professor Laura Kipnis at Northwestern University who experienced her own surreal Title IX investigation. [13]
Some doubters may never be convinced; the ideology which casts men as aggressors and women as victims is extremely pervasive, particularly in academia, and the possibility of wrongful allegations or false findings often is dismissed as rare and even, at times, necessary to correct past disbelief of rape victims. You will never win this argument, so choose your confidants wisely.
Many students have survived this nightmare and been able to move forward in their lives. FACE can connect you with college counselors who have helped students negotiate transfers to a new university and with students who have successfully navigated this nightmare and moved forward with their lives. The route is not always the same as planned, and setbacks are common, but possibilities are still there.
Do Consult Experts, Guides, and Other Authorities
Read the KaiserDillon Guide to Representing Yourself in a Campus Sexual Assault Case [14] and FIRE's Guide to Due Process and Campus Justice, [15] both excellent sources of information about the best way to proceed.
You also should familiarize yourself with Department of Education publications. Though the April 2011 "Dear Colleague" has been withdrawn by Education Secretary Betsy DeVos, many schools still insist they will follow it, and some states are attempting to codify its terms into state law:
Dear Colleague Letter, April 2011 (2011 DCL) http://www2.ed.gov/about/offices/list/ocr/letters/colleague-201104.html
In September 2017, Secretary DeVos issued new guidance, which you should read carefully, even though many schools have refused to consider it mandatory:
Dear Colleague Letter, September 22, 2017, https://www2.ed.gov/about/offices/list/ocr/sexharassresources.html
Q&A on Campus Sexual Misconduct, September 22, 2017, https://www2.ed.gov/about/offices/list/ocr/sexharassresources.html
Also, know there are other previous guidance documents that are still in effect:
1997 Sexual Harassment Guidance, http://www2.ed.gov/about/offices/list/ocr/docs/sexhar01.html
1999 Checklist for Addressing Harassment,
https://www2.ed.gov/about/offices/list/ocr/checklist.html
Revised OCR Sexual Harassment Guidance: Harassment of Students by School Employees, Other Students, or Third Parties, January 19, 2001,
https://www2.ed.gov/about/offices/list/ocr/docs/shguide.pdf
Dear Colleague Letter, January 25, 2006,
https://www2.ed.gov/about/offices/list/ocr/letters/sexhar-2006.html
2008 Sexual Harassment: It’s Not Academic (Pamphlet), https://www2.ed.gov/about/offices/list/ocr/docs/ocrshpam.html
Frequently Asked Questions About Sex Discrimination,
https://www2.ed.gov/about/offices/list/ocr/frontpage/faq/sex.html
Expect to Become Knowledgeable About All Kinds of Legal Terminology
You will become familiar with terms such as "affirmative consent" and legal terms like the "preponderance of the evidence." It is important that you and your student understand the meaning of these words and how they may impact your student’s defense. FACE families also are a good resource when you have questions. Ask a FACE Outreach person how to connect with other families. [16]
We all thought we understood consent: a person says either "yes" or "no" to a request to engage in a sexual encounter. But on campuses today it is not that simple. Affirmative consent policies and some state laws require ongoing, affirmative consent throughout a sexual encounter. If one party, almost always a young woman, has been drinking at all, it may be presumed she was unable to give "effective consent" to any sexual activity. Even if the woman initiated the encounter, supplied condoms, and was a joyful and willing participant, the school may assume the man was the initiator of the encounter and that he did not obtain effective consent, especially if alcohol was involved. This has occurred in long-standing relationships, often after a breakup or in one-night stands after one party rejects a long-term relationship. Even months or years later, complaints have been recognized as valid despite the fact that stories have changed over time.
The preponderance of the evidence is a standard for deciding guilt imposed by the now-rescinded 2011 Dear Colleague Letter and codified by some state laws. Application of that standard means that if, in the eyes of university tribunal members, there is a 50.001% chance that sexual misconduct took place, your student will be found guilty.
Preponderance is a frightfully low standard, particularly in the hands of ill-trained college personnel facing he said - she said disputes with no evidence besides the parties’ statements. With only a .001% differential between a finding of guilt and innocence, it does not take very much weight on one side of the scale to tip the balance. Unfortunately, in the current climate, it is all too often the underlying albeit unspoken presumption that if your student is a male, he is guilty.
However, some accused students are women, and men have been accusers. In any case, it is important to realize that on campus, an allegation carries great weight, and the message “believe the victim” weighs heavily on the minds of decision-makers. Even if sexual intercourse did not occur, if there was an opportunity for any sexual contact, your student may be found guilty.
Expect You May Need to File a Lawsuit Against the College or University
It’s very unfortunate, but a lawsuit may be necessary to clear your student’s name. Otherwise, your student may be facing a future without a college education. If your student’s name has become public, it may be difficult to find employment.
When weighing the cost, energy, and time required to proceed with a lawsuit, be aware that FACE families have spent hundreds of thousands of dollars, and some still have not succeeded in clearing their students’ names. Most families will recommend that if you can convince the school to allow your student to leave with a clean record, that is much more preferable than the drain on emotional and financial resources caused by litigation.
If you decide to pursue litigation, you may be accused of seeking a windfall when what you care about most is your student’s clean record. What your critics don’t understand is that you may have no choice. The system is broken, and your student is its victim. Unless your attorney can negotiate a settlement that leaves your student with a clean record, the only way to secure your student’s future may be to pursue a lawsuit.
If you do not or cannot file a lawsuit, consider filing a complaint with the Department of Education’s Office for Civil Rights (OCR). This OCR complaint must be filed within 180 days of the school’s final decision. If you decide to go that route, ask for help from families who have already done so.
Expect a Long Road to Healing
It may take years until your student and family have recovered from the Title IX experience. Be patient; many of our students suffer from ongoing PTSD, and it takes several years to regain the confidence to return to school, even when they were found not responsible.
It will get better, but the road could be long and bumpy. Reaching out to other families and students for support will make the road much easier to travel.
Revised March 19, 2019
FOOTNOTES
[1] FACE conducts biannual weekend Meet & Greets at locations throughout the country where families and students come together to hear speakers, share stories and receive advice.
[2] FACE has been consulted by women as well as LGBTQ students, though the majority are men.
[3] Although not as common, we have seen more and more high school students and some in even lower grades be subjected to guilt-presuming processes.
[4] While FACE cannot recommend any specific attorneys, your Outreach contact may be able to give you a list of attorneys who have represented other accused students. If you have not yet spoken to FACE Outreach, complete the contact form on our website at https://www.facecampusequality.org or leave a message on the phone number provided.
[5] Criminal attorneys often recommend the student not respond to school requests, which may make sense if there is a criminal action pending. A lawyer experienced with Title IX can help your student navigate the school’s process while preserving his or her rights. Of course, if there are potential criminal charges, you should consult a criminal attorney.
[6] For example, California Code of Civil Procedure Section 1094.5 requires a fair administrative hearing and has been held to apply to both state and private colleges in California that accept state funding.
[7] Be very careful if the school offers to provide an advocate, as most likely, that individual is being compensated by the school. If you have no other option, consider having that person sign a nondisclosure agreement.
[8] The standard of evidence for determining culpability is most often “preponderance,” which means more likely than not. Faced with a situation where the decision maker is unsure about the truth, in many cases the accused is found responsible. This is not how the standard should be used, but in the hands of uneducated bureaucrats, it unfortunately happens frequently.
[9] For an understanding of the current law and the proposed regulations, see FACE NPRM TITLE IX COMMENT,
[10] Id.
[11] Slate.com, December 7, 2014, http://www.slate.com/articles/double_x/doublex/2014/12/college_rape_campus_sexual_assault_is_a_serious_problem_but_the_efforts.html
[12] https://www.amazon.com/Campus-Rape-Frenzy-America%C2%92s-Universities/dp/1594038856
[13] https://www.amazon.com/Unwanted-Advances-Sexual-Paranoia-Campus/dp/0062657860/ref=pd_lpo_sbs_14_t_0?_encoding=UTF8&psc=1&refRID=J6VG0X76NSFHMRQD0MFE.
[14] KaiserDillon Guide to Representing Yourself in a Campus Sexual Assault Case, https://kaiserdillon.leadpages.co/campusdefense/
[15] FIRE's Guide to Due Process and Campus Justice, https://www.dropbox.com/s/cp8ybiwlsbnemnt/FIRE%27s%20Guide%20to%20Due%20Process%20and%20Campus%20Justice%20%E2%80%94%C2%A02019%20-%20FIRE.pdf?dl=0
[16] FACE Outreach, can be reached via our website at https://www.facecampusequality.org, or by leaving a message on the phone number provided.
