Working Within (or Against) The New Campus Order

December 3, 2016 | Comments (0)

For more than twenty years, I have been a criminal defense lawyer for people whose lives, livelihoods, and freedom is on the line. Increasingly, I represent students charged with sexual misconduct in campus proceedings where their privileges to pursue an education are at risk. Given all that has been written about these proceedings, I get questions from friends and drawn into debates at social gatherings about the wisdom and appropriateness of investigations and prosecutions by university officials. Most people’s views fall on a spectrum between the following positions.

One position is that universities have no business investigating and prosecuting accusations of sexual harassment or assault, especially if the conduct occurs off campus. A sexual assault is criminal conduct and should be investigated by the police. If criminal charges are unwarranted, the university has no interest in addressing the conduct. Along the same lines, sexual harassment is a matter best left to the civil courts.

The counter position is that universities must protect students and staff, because sexual misconduct by a student or faculty member against another student or faculty member impacts the health and safety of the university community. The university has an obligation to protect, educate, and discipline its membership without geographical boundaries.

Of course, the debate is theoretical because the government has adopted some form of the latter position and imposed on universities an obligation to implement policies to address sexual assault and harassment, including education, prevention, and discipline. The foundation of the government’s mandate is Title IX of the 1972 Education Amendments to the Civil Rights Act of 1964, which prohibits sexual discrimination “under any educational program or activity receiving Federal financial assistance.” The law that increased the number of women’s sports programs on campuses is being used to implement procedures to address sexual misconduct on campuses, at least in part, to preserve federal funding.

As a practitioner, the policy debates interest me much less than how the procedures established to implement the policies affect my clients. My concern is vigorously representing my clients during these proceedings and protecting them from unjust outcomes.

Fortunately, the North Carolina legislature passed a statute that provides students with the right to hire licensed attorneys for Title IX proceedings. This statute is significant because many university disciplinary proceedings prohibit lawyers from representing students. In the coming weeks, I will discuss the legal and practical implications of Title IX and ways we have helped students through various Title IX proceedings.

In the meantime, I offer a few words of advice to anyone facing a Title IX investigation:

  1. Don’t talk to anyone about an allegation of sexual harassment or assault without speaking to a lawyer first. As I mentioned last week, I will talk to you for free. Of the innocent people freed from prisons by exculpatory DNA evidence over the last few decades, many were convicted based on statements they made without the benefit of counsel. Speaking to a university or police investigator may undermine your ability to defend yourself.
  2. A campus investigation does not insulate you against criminal or civil proceedings. More likely, it will lead to additional problems off campus. Anticipate and prepare for collateral consequences.
  3. You need an advocate with experience navigating these proceedings. I have over twenty years experience in the state and federal courts throughout North Carolina and have advised hundreds of students facing university disciplinary proceedings. Don’t hesitate to call.

Amos Tyndall is a criminal trial lawyer who represents people accused of serious criminal offenses in state and federal courts throughout North Carolina. He has successfully defended people against a wide range of charges, including vehicular homicides, white collar offenses, and first-degree murder. Amos has been included in ©The Best Lawyers in America from 2013-17. Call (919) 967-0504.

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