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Professional Opinion

How colleges can avoid Title IX pitfalls

Lessons on how to provide due process to accused higher ed students
University Business, April 2017
Anne M. Tompkins is a partner at Cadwalader, Wickersham & Taft. A. Joseph Jay III is a special counsel at CW&T. Colleen Kukowski is an associate at CW&T, focused on compliance issues. Alex Hokenson is a law clerk in CW&T’s White Collar Defense and Investigations group.
Anne M. Tompkins is a partner at Cadwalader, Wickersham & Taft. A. Joseph Jay III is a special counsel at CW&T. Colleen Kukowski is an associate at CW&T, focused on compliance issues. Alex Hokenson is a law clerk in CW&T’s White Collar Defense and Investigations group.

Imagine this: You have been charged with sexual misconduct and suspended without warning. You are given no opportunity to make a statement in your own defense. You are given wrong information on policies and procedures in advance of what you believe will be an initial hearing on the charges.

When you arrive at your first hearing you find that it is your trial. No one has spoken to you, interviewed you or provided you with discovery. You have had no ability to review the case against you, much less to prepare for your own defense.

Is this another country? Another time in history? No, this is the adjudicatory process on many campuses across this country for those accused of sexual misconduct.

In fact, this dystopian hypothetical was reality for at least one accused student at Wesley College in Delaware.

Importantly, it led to the Department of Education’s Office for Civil Rights (OCR) finding that Wesley College in Delaware violated Title IX by not providing students accused of sexual violence with a fair disciplinary process.

This was the first time that OCR found a school in violation of Title IX based upon denying an accused student of his due process rights, and it likely will not be the last.

While it is laudable that schools have engaged in a national effort to combat sexual assault on campus, they may find their focus has led to ignoring important due process considerations for the accused in the adjudicatory process.

Fairness

Accused students are increasingly bringing—and winning—lawsuits against schools on the grounds that their Title IX policies are procedurally unfair to accused students.

Balancing pressure to eradicate sexual assault on college campuses with the pressure to establish strong sexual assault policies and procedures that, at the same time, satisfy due process requirements is hardly an easy task.

Courts are reminding some schools that in focusing on the rights of the victim, they cannot ignore basic tenets of fairness to the accused in their sexual assault process.

Integrating these following five best practices will help schools ensure that their sexual assault policies and procedures satisfy OCR’s requirements and still protect the fundamental due process rights of all parties involved in the matter.

1. Provide adequate notice to accused students.

In another recent case, a federal judge chastised George Mason University for “severe procedural deficiencies” in its Title IX proceedings and found that an accused student’s due process rights had been violated.

The student sued the university over due process violations, which included being given incomplete notice of the charges against him (he was told of only one alleged sexual assault incident, when he was being charged for several).

To ensure they are complying with due process standards, colleges and universities must provide accused students with notice of the investigation into the allegations against them and inform them of any hearings related to the investigation.

The notice should include the specific instances of conduct being investigated and charges being brought. The notice should also be given at a point that allows the student adequate time and information to understand the allegations, prepare a meaningful defense against the charges and provide information to the investigation.

Students should also be advised of any rights they have under the school’s procedures.

2. Allow the accused to challenge the complainant’s testimony.

The OCR’s 2011 “Dear Colleague” letter (UBmag.me/dear) “strongly discouraged schools from allowing the parties to personally cross-examine each other during the hearing.” The intent was to avoid a traumatic experience for victims.

However, denying the accused an opportunity to challenge the complainant’s testimony is denying a critical due process right and renders a school vulnerable to a finding that its adjudication was fundamentally unfair.

Schools are not expected to recreate criminal trials, but they must attempt to craft a process that allows for fairness to the accused without creating a hostile environment for the victim.

Even if schools don’t allow direct cross-examination, they should allow accused students the opportunity to review their accusers’ testimony and challenge it in some form.

Schools can craft procedures that allow an accused student to respond to testimony against them without interacting with a victim. For example, the accused student may be permitted to use an attorney (provided the complainant is given the same opportunity) or to pose questions to their accusers through a hearing officer.

An accused student is allowed to submit questions. Schools that adopt this procedure, however, must ensure the hearing officer is not exercising too much discretion in rejecting and rephrasing the accused student’s submitted questions.

At UC San Diego, a hearing panel used this procedure but rejected 22 of the accused student’s 31 requested cross-examination questions and rephrased the remaining nine questions—because of this interference, the court deemed that this procedure unfairly limited the student’s right to cross-examine his accuser.

3. Allow the accused to present evidence in their defense.

One difficult issue for procedural fairness is the gathering and presentation of evidence for the accused. Colleges have problems that make it difficult for them to guarantee a fair hearing, such as the lack of subpoena power and the inability to collect forensic evidence.

However, there are other ways in which schools can support the accused in his ability to present evidence in his defense. For example, accused students should be given wide discretion to call their own witnesses and introduce evidence at their hearings.

Courts strongly disapprove of schools that severely curtail or ignore this basic due process right. For example, in John Doe v. Brandeis University, an accused student had attempted to submit additional facts, witnesses, and a sworn affidavit to defend himself, but the school’s special examiner refused to consider any of it.

The district court cited this “impairment of right to call witnesses and present evidence” as one of the university’s major due process failings in the case.

4. Separate the functions of investigator and adjudicator.

Colleges and universities are afforded flexibility in assigning school personnel the responsibilities of investigating and adjudicating sexual assault allegations. Schools should, however, be wary of combining the functions of investigator, prosecutor and judge in their procedures for resolving complaints of sexual misconduct.

Doing so can create the appearance of bias and can compromise the integrity of the adjudication.

In the Brandeis case, the school used a “special examiner” (described by the court as a “single individual, essentially vested with the powers of an investigator, prosecutor, judge and jury”) to handle sexual assault complaints in place of a separate investigator and panel.

The court found that the use of this special examiner made the entire process procedurally unfair.

5. Maintain a procedural record of the proceedings.

OCR has directed colleges and universities to “maintain documentation of all proceedings, which may include written findings of facts, transcripts, or audio recordings.”

Additionally, courts have required public universities to make written findings of their decisions, and have found such findings inadequate when they are not supported by substantial evidence.

In the George Mason University case, the district court determined that the university’s due process was procedurally inadequate after finding that the accused student could not meaningfully appeal because there was no record, written or otherwise, that had the complete arguments presented and the facts and reasons on which the decision was based.

Conclusion

The rising tide of successful litigation by accused students, and increasing instances of settlements by colleges and universities, all reinforce the need to assess issues of basic fairness in the adjudication of sexual assault cases. Procedural due process is not a best practice. It is a requirement.

Title IX hearings are not court hearings. But, under the law, colleges are obligated to investigate and adjudicate sexual assault complaints on campus as a part of their responsibility to provide students with a safe learning environment.

In doing so, they must observe basic fairness to both parties—protecting the victim, as well as ensuring due process rights for the accused.


Anne M. Tompkins is a partner at Cadwalader, Wickersham & Taft. A. Joseph Jay III is a special counsel at CW&T. Colleen Kukowski is an associate at CW&T, focused on compliance issues. Alex Hokenson is a law clerk in CW&T’s White Collar Defense and Investigations group.

University Business welcomes the insights and opinions of educators and administrators on all topics. If you would like to contribute a guest column, please contact Tim Goral at tgoral@promediagrp.com.

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