Students and faculty accused of violating their school’s Title IX misconduct policies (e.g., accused of sexual assault, harassment, dating violence, stalking, etc.) need the help of an advisor. According to federal regulations, that advisor may be an attorney but does not have to be. If they do not choose an advisor, their school will appoint one for them—at least for the trial-like hearing (if there is one).

While virtually anyone can serve as an advisor, if you are seeking any kind of trained assistance your choices will come down to either a school-appointed advisor or an “independent professional advisor.” A school-appointed advisor is just that: someone appointed by the school to assist accused students and faculty (“respondents”). An independent professional advisor is not pre-selected by the school and instead takes on advisees as clients.

Why a Title IX Advisor is Necessary

From the school’s perspective, providing an advisor is necessary to satisfy their obligations under federal Title IX regulations. For accused students and faculty, advisors are necessary because the process is complicated, the risks are high, and schools’ interests often run counter to their own.

Title IX “grievance procedures” (the process by which schools investigate and determine guilt for sex-based misconduct) are subject to federal regulations, judicial decisions in both state and federal courts, federal and state laws, school policies, and the undisclosed interests and biases of administrators. It would be unreasonable to expect respondents to know how to navigate them all simultaneously and at a moment’s notice. The consequences for respondents being found guilty (“responsible”) are life-altering; they have faced expulsion, termination, the inability to continue their education elsewhere, harassment, threats, criminal charges, denial of professional licensing, termination of employment, and (for students on a visa) deportation.

It does not help that schools are under heavy pressure to treat accusers (“complainants”) favorably. This pressure can come from pro-accuser organizations or advocates, many of whom demand that schools believe accusers regardless of the facts, are hostile to due process, and demand that false accusers (if they recognize them at all) should not be punished. It is also common for Title IX personnel to have backgrounds in women’s issues and never for men’s, leading to bias when accusations are female-on-male (which most Title IX cases are). Lastly, lawsuits by complainants against their schools tend to be much more costly than lawsuits by respondents. All of this means that schools’ interests tend to weigh on the side of accusers.

Anyone caught up in this process owes it to himself or herself to make good choices that can substantially impact the outcome. One of those choices is choosing the right advisor.

The rest of this post will discuss the pros and cons, on average, between school-appointed advisors and independent professional advisors. There is variety among them, however. In individual cases, some of these pros and cons may not apply, and others may apply that I have not mentioned (I am sure I will receive an email about at least one such case). Most of the exceptions will likely pertain to advisors from firms contracted with the school to assist respondents.

My recommendation is that you should choose an experienced independent professional advisor who specializes in Title IX matters over a school-appointed advisor whenever possible. The risk is usually too great. If that is not possible, you still deserve to know what school-appointed advisors can do for you and how to properly evaluate them. This post can help.

School-Appointed Advisors: Summary of Pros and Cons

Benefits of School-Appointed Title IX Advisors

Free

The biggest benefit of such advisors is that there is no (immediate) financial cost for you. There is no need for you to check your bank account or ask your parents for financial assistance.

If you are a student, a side effect of this benefit is that you may not feel the need to tell your parents about the matter at all. For reasons I have explained elsewhere, this is usually not a great idea because your parents are a vital part of your support network. Lastly, be aware that being found “guilty” may lead to losing far more money in the long run than what would have spent on an independent professional advisor.

Easy to “Onboard”

Title IX respondents can begin working with their advisors as soon as they are available. Note that, depending on your school, this may not be until the hearing. If the advisor is employed by the school, you can likely meet him or her on campus unless you are barred from the grounds; in these cases, you can usually meet off-campus nearby.

Basic Advisor Training

School-appointed advisors have received basic advisor training, usually by an outsourced firm. They will understand the general process, its stages, and the roles of various members of the school’s Title IX team. Their training will likely give greater weight to hearings and cross-examination, and you can count on them being available for that when the time comes.

Good Intentions

These advisors generally have good intentions—or, at least, they do not have bad intentions. Their motivations for being an advisor may vary; they may want to “give back” to the community, ensure that no one goes through the process alone, or use the advisory role to develop skills and knowledge that could prove professionally useful later. Note that despite having good intentions, many also come with conflicts of interest (more on that soon).

Can Communicate Well With Administrators

Schools tend to appoint advisors with whom they already have some kind of professional relationship. They are usually sourced from their own academic community and have likely been personally interviewed by some members of the school’s Title IX team. The end result: there is a good chance that the advisor will be able to communicate in a professional manner, which is important because you do not want to create unnecessary friction between yourself and the school.

Drawbacks of School-Appointed Title IX Advisors

Less Skin in the Game

While the assistance of such advisors is free, the downside is that they have less skin in the game. They are accountable to the school before anyone else. Their advisees are not clients, their relationships are not contractual in nature, and they stand to lose little if their performance is mediocre or poor. They will likely feel bad if their advisees are wrongly punished, but that is different from feeling bad and the pressure of having their own livelihood tied to the quality of their assistance.

They also usually not paid by the school unless they work for a firm contracted to provide advisory services. In such cases, the advisor will usually be experienced and professionally specialized in Title IX matters.

Conflicts of Interest

Because school-appointed advisors are “often drawn from the ranks of faculty, staff, recent retirees from the institution, law faculty, law students, a regional consortium of schools, etc.,”[1] they tend to be people whose interests and needs are already dependent on that school. Sometimes, schools will do things that are blatantly unfair, and respondents need their advisor to help them push back. The more that advisor is tied to that school, however, the less likely he or she is to “rock the boat.”

In some situations, school-appointed advisors have roles that overlap too closely with the Title IX office. In no situation should your advisor be a school employee whose non-Title IX duties require them to report directly to a Title IX administrator, even if the advisor is a counselor who promises confidentiality (see “Lawsuit: University Counselor Betrayed Falsely Accused Student”).

Limited Scope of Assistance

Schools are only obligated to provide respondents with an advisor during a hearing. The main reason for this is to provide the parties with the opportunity to cross-examine each other through their advisor rather than doing so themselves, which would often be disastrous. Schools are not obligated to provide advisors during the investigation or appeal phases, both of which are critical phases that can easily set up respondents to fail if they are mishandled. It rarely helps the respondent to have an advisor during the hearing if everything up to that point has gone poorly.

Limited Experience

School-appointed advisors lack broad experience because they are often drawn from the local academic community and only work with that school. Their understanding of Title IX matters is usually limited to what happens at that one school. Because independent professional advisors work with respondents from many schools, they have exposure to a much wider range of people, processes, strategies, and ideas. This experience snowballs over time.

Keep in mind that part of being an effective advisor involves reviewing the training materials of Title IX personnel for bias. This means an independent professional advisor has reviewed training for multiple roles (e.g., investigator training, decision-maker training, etc.) and from numerous institutions.

Lack of Specialization

For advisors sourced from the local academic community (which is most of them), Title IX will not be their professional focus. Their ambitions for professional development will lie elsewhere, which means their training in Title IX matters will come almost exclusively through their own school. This brings us to…

Limited Training

School-appointed advisors receive basic training. Their training is limited, however, in that it:

1. Trains advisors to be moderately prepared for the hearing and less prepared for other critical work
2. Trains advisors mostly in rules, roles, and procedures; much less (if at all) on tactics and strategy. For example, the training rarely teaches how to navigate what situations are strategically favorable or unfavorable for filing a counterclaim.
3. Does not comprehensively train advisors on relevant regulations, laws, and judicial opinions. Numerous regulatory provisions will be partially baked into the training, but they will often lack direct citations to the regulations. This creates another problem: such training…
4. Tends to blur the line between what is merely “best practice” (what schools would ideally do but are not necessarily obligated to do) and what is required by law

All of this makes sense given that schools are not explicitly required by federal regulations to provide any training to their appointed advisors and are only obligated to provide advisors to the parties during the hearing. Consequently, a large portion of their training centers on the hearing.

Advisors need to find and exercise leverage when schools act improperly and in a manner that disfavors their advisees. One way to do that is by providing in-context quotes and direct citations to relevant regulations, judicial opinions, and laws in communication to administrators. But they have to be trained to do that.

Lastly, school-appointed advisors are often in the dark about the many horror stories of schools abusing the rights of respondents, many of which are the subject of lawsuits. Their training does not cover them. Independent professional advisors often have access to legal databases and are familiar with litigation that exposes such cases. They are more likely to know what rules are in place and should be observed…and how badly things can go when they are not.

Conclusion

Choosing an effective Title IX advisor is critical for defending yourself from unfair accusations or improper actions by the school. I hope that this post has helped clarify some of the benefits and limitations of school-appointed advisors. If you are currently involved in a Title IX matter and need the help of an independent professional advisor, please contact us for help.

Notes

[1] See ATIXA, Ensuring the Parties Have Title IX Process Advisors