Students who have been accused of sexual assault – whether by the police or a school investigator – need to obtain experienced help as quickly as possible.
“As attorneys, we have been approached by dozens of students from schools across the nation facing disciplinary proceedings. Most of these matters have been resolved quietly; some have led to litigation. What they all have in common is that the students believe that the procedures did not afford them fundamental fairness.”
— Joshua Adam Engel, March 2015 issue of Fraternal Law.
Video feature from Dayton Daily News:
This help should involve an attorney who has experience in three areas: civil rights, school disciplinary proceedings, and criminal defense.
In our experience, students recognize too late that campus administrators and law enforcement investigators are not their friends.
Sometimes cooperation or just keeping silent is the best alternative. But, often, there is a better approach to just telling a different version of the events.
Joshua Adam Engel has represented a significant number of students in both school disciplinary investigations and school disciplinary proceedings. Many of these cases are resolved quietly and favorably. Some, however, have required litigation to protect the rights of students.
A case brought by Engel raising due process issues in a campus sexual assault investigation is featured in a New York Post opinion column by Andrea Peyser.
A case raising gender discrimination and due process issues brought by Engel was filed in Houston, Texas.
A case raising due process, free speech, and Title IX issues at Ohio University was filed by Engel in 2015
Understanding the Background — Pressure from the Federal Government
Students need to recognize that an allegation of sexual assault does not occur in isolation.
These cases arise amidst a growing national controversy about the responses of colleges and universities to sexual assaults on campuses. After years of criticism for being too lax on campus sexual assault, on April 11, 2011, the U.S. Education Department’s Office of Civil Rights sent a “Dear Colleague” to colleges and universities. The Dear Colleague Letter indicated that, in order to comply with Title IX, colleges and Universities must have transparent, prompt procedures to investigate and resolve complaints of sexual misconduct. Most notably, the Dear Colleague Letter required schools to adopt a relatively low burden of proof—”more likely than not”—in cases involving sexual misconduct, including assault.
Historically lax punishment for rapists at some colleges has spurred new rules from the federal government in recent years. Now, schools are required to investigate and resolve any allegation of sexual assault quickly and decisively. Failure by colleges to do that can lead to fines, federal investigations that can last years and a black eye to their public reputations.
“They wanna say, ‘We’re tough; we dealt with this,’” said Joshua Engel, a Cincinnati lawyer who represents students in lawsuits they file against colleges over judicial decisions. “Essentially, they want to put heads out on pikes in front of the school to show that they’re tough.”
The Federal Government, through the Department of Education, has been using Title IX to pressure colleges and universities to aggressively pursue investigations of sexual assaults on campuses. In May 2014, the federal Department of Education disclosed the names of 55 colleges under investigation for possibly violating federal rules aimed at stopping sexual harassment. This list has grown to approximately 74, and schools face the prospect of the loss of all federal funding if they do not comply with Education Department proposals. The assistant secretary of education who heads the Education Department’s Office for Civil Rights, told college officials attending a conference that schools need to make “radical” change. She later told a separate conference, “I will go to enforcement, and I am prepared to withhold federal funds.”
Cases Argued by Engel:
Against this background, schools have adopted various Sexual Misconduct Policies. While these policies often to provide those accused of misconduct “a prompt, fair, and impartial investigation and resolution,” the truth is often different. Schools repeatedly rush to judgment in an effort to find students “responsible” in order to “look tough.” Worse, the job of investigating and adjudicating these claims often is carried out by administrators with no experience in investigations and no knowledge of the fundamental due process rights owed to students.
The hearing processes by the schools often are “kangaroo courts” where a student is presumed to be guilty. Some of the problems we have observed include:
- Panel members who are pursuing a biased political agenda instead of seeking the truth
- Biased investigations, including instances where the investigator hides evidence that is helpful to the accused
- The inability of students to effectively cross-examine witnesses or bring in supporting witnesses
- The unwillingness of panels to consider relevant evidence
A Big Problem for Students
A student found “responsible” for a sexual assault by a school faces severe consequences.
Suspension or expulsion is just the beginning.
The school may place a notation on transcripts, which would inform any future graduate school or employer of the incident. In addition, the discipline may have to be disclosed on professional applications (like for the bar exam or a medical license) or background checks for a security clearance.
What to do
The first step in responding to any allegation of sexual assault is to conduct a full and complete investigation. This may include work by trained former law enforcement officers. In many cases, a polygraph examination is a useful tool. A good investigation can be used to clear a students’ name quickly, and may avoid further disciplinary proceedings.
Someone You Can Trust
Engel has been recognized as one of the leading attorneys in this field. He recently gave a presentation at a nationwide symposium on this issue in Washington, DC. He combines experience in three important fields: civil rights, school disciplinary proceedings and criminal defense.
Engel joined 19 attorneys from around the country to send a letter to key Senate sponsors of the Campus Accountability and Safety Act (S. 2692), expressing their concern that the proposed legislation does not adequately protect the due process rights of students who have been accused of a campus sexual assault.
Students with questions should contact Joshua Adam Engel at 513-445-9600 or firstname.lastname@example.org