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College Conduct Code Violations Due ProcessDue Process Problems with Campus Adjudication of the Wrongly Accused

On April 4, 2011, the Office of Civil Rights (OCR) of the Department of Education (DOE) issued a new Dear Colleague Letter (DCL) outlining the procedures that institutions should follow to remain in compliance with Title IX, the federal statute that prohibits sex discrimination in education.

Under the DCL, schools are required to develop and distribute policies regarding sexual harassment, designate a Title IX coordinator to oversee the school’s duties, train staff and students in sexual harassment and violence issues, and establish an investigation procedure and an adjudication process. Many argue that the manner in which the letter is written impairs the procedural due process rights of those students accused of sexual harassment and sexual violence, therefore calling into question the basic fairness of the disciplinary proceedings.
Further, the OCR articulated a “prompt and effective” standard for addressing notice of sexual misconduct on campuses. The general standard to be applied is a 30 to 60 day time frame to meet the promptness requirement, not just for the investigation phase of the process, but for the entire process from notice through to the final determination of any appeals and the implementation of any sanctions and remedial actions.

When a school delays their investigation and resolution processes beyond the sixty-day requirement, they are failing to adequately meet the mandated elements as set forth by the OCR for compliance with Title IX.  In their efforts to comply with Title IX and to avoid suspension of federal funding, schools face pressure to find the accused guilty of sexual assault with utter disregard for the accused student’s fundamental due process rights.

Requests to Protect the Accused Student’s Fundamental Due Process Rights

Since the 2011 issuance of the DCL, there have been numerous requests from lawmakers, law professors and others calling for colleges to restore due process in the adjudication of sexual assault cases including:

We are concerned that the complexity of the problem and the momentum to find a solution to the manner in which colleges handle these matters will overwhelm any effort to ensure fair treatment to and protect the rights of the accused — particularly with respect to due process, impartiality and the collection of evidence.”

“By presuming that all accusers are in fact ‘victims’ prior to any investigation or adjudication, the proposed legislation does a grave disservice to those accused of serious sexual offenses by ignoring a concept at the core of due process, innocent until proven guilty.”

The attorneys remind the Senators that those accused of sexual assault “face potentially life-altering consequences from an adverse decision by their schools.” Therefore, colleges and universities have a duty to ensure that accusers and the accused are “treated fairly and equitably.”

The law professors highlighted “the absence of any adequate opportunity to discover the facts charged and to confront witnesses and present a defense at an adversary hearing,” and “the failure to ensure adequate representation for the accused, particularly for students unable to afford representation.”  In addition, the Harvard legal scholars objected to “the lodging of the functions of investigation, prosecution, fact-finding, and appellate review in one office and the fact that that office is itself a Title IX compliance office whose principle task is to root out discrimination against women rather than an entity that could be considered structurally impartial.”

Call a Due Process Attorney to Protect the Due Process of the Wrongfully Accused

There are devastating, deep and long-lasting impacts on those wrongly accused of sexual assault who are denied fair and equitable treatment by their colleges in investigating and adjudicating alleged sexual misconduct.  If you or someone that you know is wrongfully accused, it is imperative that you speak to an attorney who is familiar with Title IX and the lack of due process afforded to the accused as soon as possible.  Our experienced attorneys are available to review all of the specifics associated with your case on an immediate basis in order to protect your rights.  Call the Title IX attorneys at Duffy Law today at 203-946-2000.

References

[2] http://pdf.iwf.org/PolicyFocus16_Jan_p3.pdf
[3] https://www.thefire.org/opinion-and-order-in-doe-v-hazard-no-515-cv-00300-e-d-ky/
[4] https://www.huffpost.com/entry/california-college-sexual-assault-punishment_n_561b184de4b0dbb8000f020f?ec_carp=5314621133404392893
[5]  https://www.congress.gov/bill/114th-congress/senate-bill/590

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