Addressing a similar issue, the United States Supreme Court has held that public employees have the right to be free from compulsory self-incrimination. This protection, known as a public employee’s “Garrity Rights” is based on the 1967 Supreme Court case Garrity v. New Jersey where police officers were given a choice to answer questions asked during an internal investigation into fixed traffic tickets or to forfeit their jobs. Their answers to the questions were later used against the officers in criminal proceedings. The Supreme Court held that the protection against coerced statements extends to all public employees and prohibits the use of statements obtained under threat of removal from office in subsequent criminal proceedings.

In the wake of Garrity, many public employers issue “Garrity Warnings” to their employees during internal investigations to ensure that employees can respond truthfully to the employer’s questions without fear of compromising their constitutional rights. We believe that Garrity Warnings should apply to professors at public colleges and universities facing Title IX proceedings since the same risks apply to these professors.

College and university professors face a situation similar to the police officers in Garrity: either participate in the Title IX investigation/hearing and risk disclosing potentially self-incriminating statements or remain silent and risk the loss of employment if they are found responsible. To help ensure that professors are better able to comprehend and untangle the often-complicated Title IX process, public colleges and universities should follow Garrity’s guidelines and make every effort to issue their employees “Garrity Warnings” at the outset of a Title IX investigation. Issuing “Garrity Warnings” will safeguard employees’ Fifth Amendment right while also allowing employees to participate in the Title IX process.

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In December of 2008, the United States Department of Education, after amending regulations to the Individuals with Disabilities Education Act (IDEA), allowed parents to revoke their consent for special education and related services for their child. Thus, if a parent no longer agrees with the services their child receives, the parent alone can simply revoke their consent to all services in writing. The school district is then required to discontinue all special education and related services for the child within a reasonable period of time.

However, what if a parent believes that it is only necessary to revoke their consent for the continued implementation of some special education services and not to others. In other words, what if a parent only wishes to revoke their consent for one specific service. Can the school discontinue some services, while keeping those for which the parent has not revoked consent.

The Department of Education has luckily provided some guidance in answering this inquiry. It has stated where a parent disagrees with a particular special education service and the parent and school agree that the child would still be provided with a free appropriate public education (FAPE) if the child did not continue to receive that service, the school should just remove that service from the child’s Individualized Education Plan (IEP), while continuing to keep the other services in place. However, if the parent and school disagree about whether the child would be provided with FAPE if the child stopped receiving a particular special education service, the parent may use established due process procedures to obtain a ruling that the service with which the parent disagrees is not appropriate for the child.  Still, the district should still continue to follow the IEP with regard to the other services.

The decision whether to revoke parental consent to special education and related services in their entirety or to revoke consent only for some services and not to others can be challenging to navigate.  Typically, parents can consult with outside professionals before making such an important decision.  However, parents should be comforted by the fact that an IEP is a live document, always subject to review and criticism, and that they have the right to critique individual services.

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When students report claims of sexual assault, colleges must follow its Title IX sexual misconduct policies. At the same time as invoking Title IX processes, students can also file reports with law enforcement agencies. As a result, accused students may face expulsion and criminal prosecution. Given the high stakes for both sides, colleges and universities continue to struggle with balancing the rights and interests of all parties to reports of sexual misconduct. The Office for Civil Rights continues to wrestle with this debate.

Despite what some may think, how to respond to reports of sexual misconduct in the academic setting is complicated. Really complicated. Students can bring claims anytime they are enrolled at a school. Because there is no time limit for reporting sexual misconduct, academic institutions with limited resources must investigate reports about alleged behavior that took place years before the filing of complaints. When this happens, cases may turn on one person’s memory, which can be dangerous. Evaluating credibility without additional evidence is a thorny process.

To ensure fairness and accuracy, we encourage that the slogan for 2018 be hailed as #MeTooNow. In other words, reports of sexual misconduct are best handled when the reports are made in a timely manner. Prompt reporting is best for all parties to the equation.

Both sides benefit when a report is made in a timely manner. Title IX investigators are better situated to secure witness statements. If a student waits to file a report and delays an investigation, witnesses might move or transfer to another academic institution, be reluctant to come forward, or just not remember details that could be important to evaluating a claim. Another advantage is that electronic evidence such as text messages, social media posts, and surveillance footage can be obtained and preserved. Delayed reporting creates a risk that valuable evidence disappears, which undermines the accuracy of investigations.

Timely reporting helps both sides draw on-campus resources and obtain a decision that is supported by evidence.

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