How an Advisor Can Help: The Role of an Advisor when a Title IX complaint is filed
A student or faculty member who is a party to a Title IX complaint, whether as a complainant or respondent, is entitled to an advisor of their choice at every stage of the process. Under the current federal Title IX regulations, the advisor plays an active, defined role in the investigation and the hearing. Knowing what a Title IX advisor can and cannot do allows a student to make an informed decision about how an advisor can help them effectively advocate for and protect themselves.
At Koffsky & Felsen, LLC, we represent respondents and complainants, faculty and staff. We also serve as independent investigators for schools as part of the Title IX process. We understand each stage of the Title IX and student disciplinary process and the respective roles of coordinators, investigators, hearing officers, and advisors.
What Is a Title IX Advisor?
A Title IX advisor is the person who helps a complainant or respondent navigate a federally funded elementary, secondary, or higher education institution’s Title IX complaint and resolution process (which includes informal resolutions, investigations, disciplinary hearings, and even appeals). An advisor can be an attorney, a family member, a colleague, or any other person the student chooses. Schools cannot deny a student their advisor of choice. Students may also select an advisor from a pool of trained professionals offered by the institution. (Note: In cases that do not involve allegations of sexual misconduct, some schools may not allow attorneys to serve as advisors; it is important to review your school’s policies.)
Title IX advisors assist complainants or respondents by helping their client present their case and protect their rights, from the earliest stages of the complaint process through investigations, hearings, and appeal, if necessary.
Before the Hearing
- Know the applicable policy. The version of the Title IX policy that governs a complaint depends on the date of the alleged incident, not the date it was reported. An advisor will confirm which version of the school’s policy and procedures applies.
- Understand interim measures and emergency removal. If a student is removed from housing, classes, or campus activities on an emergency basis, or otherwise restricted from campus activities, the advisor helps the student understand that process and how to respond to it.
- Prepare the student for investigative interviews. The advisor helps the student give a clear, organized account of the facts, in their own words.
- Identify witnesses and organize evidence. The advisor helps the student think through possible witnesses (who saw or who knows what), and helps identify, preserve, gather, and effectively organize evidence such as videos, text messages, social media posts, etc.
- Review the draft investigation report. Before an investigative report is finalized, both parties and their advisors have an opportunity to review it, identify factual errors, and request that the investigator follow up. This review period is one of the most important, and often ignored, parts of the Title IX complaint process.
The Title IX Advisor’s Role During the Hearing
- Help prepare cross-examination. At the postsecondary level, the parties are not permitted to question each other directly. All cross-examination questions go through the advisor, the hearing officer, or decision-maker, depending on the school’s policy. The hearing chair or decision-maker rules on whether a question is relevant before the other party has to answer it. A Title IX advisor will help phrase relevant questions that important to their client’s matter.
- Help prepare testimony. An advisor will help you prepare for questions, instruct you how to answer only the question asked, and to ask for clarification when a question is unclear.
- Help draft opening and closing statements. This is the student’s opportunity to explain the evidence and their position regarding the allegations. Some schools allow students to prepare and present impact statements, or mitigation statements, which address the consequences of the alleged conduct. An advisor can guide you in preparing an impact statement, which is usually presented only if there is a finding against the respondent and sanctions may be imposed.
The Title IX Advisor Protects Students Throughout the Process
Throughout a Title IX proceeding, an effective advisor stays alert to procedural issues and protects their client throughout the process.
- Procedural errors or bias. An advisor will raise and document concerns about any unfairness or due process violation during the process —for example, if a rule is applied inconsistently, a question is asked that should not have been permitted, evidence is withheld — and preserve the record for the purpose of an appeal, if necessary.
- Rules of evidence. Certain categories of evidence, such as a complainant’s sexual history or sexual predisposition, are almost never relevant or able to be questioned. An advisor makes sure such evidence is not used against a complainant. An advisor will raise concerns about procedural fairness, relevance, and help you prevent the introduction of inflammatory and irrelevant evidence.
- Deadlines. Every phase of a Title IX or other disciplinary proceeding has deadlines — for meeting with investigators, providing and responding to evidence, requesting an appeal, etc. Advisors will make sure you are aware of and assist you to meet deadlines so you do not unintentionally waive important rights.
- Withdrawal considerations. If a respondent is considering options regarding withdrawal from school, your advisor will makes sure you understand whether this will lead to a dismissal of the complaint, whether the process will continue despite withdrawal, and how any resolution could affect your future educational options; including but not limited to the ability to transfer, what information is reported on transfer applications, and what may appear on your transcript and/or disciplinary record.
Appeals
An advisor will help you determine whether you have grounds for an appeal and will help the student respond within the required timeframe.
Important Considerations About Concurrent Criminal Proceedings
If you are a respondent in a school disciplinary proceeding, especially if you are facing allegations of sexual misconduct, it is crucial to discuss with your advisor the possible criminal implications of participating in a Title IX or other disciplinary investigation. A school’s Title IX process is entirely separate from any criminal investigation, and a student’s choices in one can affect the other — including the risk that evidence provided or statements made could later be used in a criminal proceeding. Discuss these potential concerns with your advisor, and make sure they understand both the Title IX process and criminal law, and how one investigation can affect the other.
Frequently Asked Questions About Title IX Advisors
Can a Title IX advisor be an attorney?
Yes. A party to a Title IX complaint may choose an attorney, a family member, a colleague, or any other individual as their advisor. Schools cannot deny a student their advisor of choice when there is an allegation of sexual misconduct.
Does a Title IX advisor speak for the student during the investigation?
Generally, no. During the investigation phase, the student is expected to answer questions. The advisor’s role is to help a student prepare for the investigative interview in advance and to offer guidance and support throughout the process—even if it means a student takes breaks during an interview or before answering any questions during a hearing in order to consult with their advisor/attorney.
Does a Title IX advisor have any role at the hearing?
Yes, for cross-examination. At the hearing, all cross-examination questions must be posed by or through the advisor, not the student. Additionally, the student being cross-examined may request a break before answering any questions, so that they can talk to their advisor for help preparing a response.
Do complainants and respondents both have the right to an advisor?
Yes. Both parties have an equal right to an advisor of their choice throughout the process, from filing a complaint through an appeal.
What happens if a student doesn’t have an advisor for the hearing?
At the college and university level, if a party does not arrange for an advisor, the school must appoint one for the hearing so that cross-examination can occur. The appointed advisor is often a faculty member of the school. Review your school’s policies and handbooks to determine your options regarding having an advisor and the advisor’s role in the process.
If you or your student is a party to a Title IX complaint or a school disciplinary matter at an educational institution anywhere in the United States, contact us with any questions about the process and how to prepare to get the best outcome possible.