The tangled web of Title IX is often difficult to unravel. College and university professors may find themselves facing allegations of sexual misconduct, and then they become the subject of a Title IX investigation. Suddenly, these professors’ jobs are at stake as they try to navigate the star chamber Title IX proceedings. During these Title IX investigations, professors may feel that they have little choice but to participate in interviews with their employers to avoid termination of employment. However, involvement in discussions about allegations presents serious risks if there is a parallel criminal investigation. Any statements professors make during Title IX investigations could subsequently be used against them in criminal proceedings. Thus, professors who try to protect their job by participating in Title IX investigations could unwittingly incriminate themselves.
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.