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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:

  • In January 2016, the Independent Women’s Forum released a policy paper, “Title IX and Freedom of Speech on College Campuses,” which deplores how colleges that adhere to “basic concepts of due process and innocence until proven guilty” could be found to be in violation of the Title lX [2] Publication of the IWF is the most recent in a long list of lawmakers and law professors that have issued statements calling for colleges to restore due process in the adjudication of sexual assault cases.
  • On January 11, 2016, Democratic candidate and Senator Bernie Sanders called for the referral of campus sexual assault cases to the criminal justice system, which embodies an array of due process protections.
  • Republican candidate and Senator Marco Rubio recently issued a statement noting that false allegations of sexual assault “can destroy lives…Certainly, we should make additional efforts to protect due process on campus.”
  • On January 15, 2016, a federal court in Kentucky[3] ruled that a campus sexual assault hearing should be regarded as a “proceeding…akin to a criminal prosecution,” and held that states should ensure that adjudicatory procedures are fair.
  • In October 2015, California, governor Jerry Brown vetoed a bill last fall that would have established a mandatory minimum punishment for students found responsible of rape or sexual assault. “College campuses must deal with sexual assault fairly and with clear standards of process[4].”
  • On October 2, 2014, a group of 20 attorneys from across the country with experience handling sexual assault cases sent a letter on to the co-sponsors of the Senate’s campus sexual assault bill. The attorneys, who have all represented students accused of sexual assault who are now suing their universities for lack of due process, wrote that while sexual assault needs to be addressed, the rights of the accused need to be preserved.  Citing the Campus Accountability[5] and Safety Act the letter provides:

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.”

  • In October of 2014, 28 Harvard law professors[6] issued a statement that echoed the concerns of the 22 attorneys, which statement was published in the Boston Globe protesting new university-wide procedures for adjudicating accusations of sexual harassment and sexual violence. While stressing their commitment to protecting students, the law professors observed that “Harvard has adopted procedures for deciding cases of alleged sexual misconduct which lack the most basic elements of fairness and due process” and “are overwhelmingly stacked against the accused.”

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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Duffy Law’s full staff is working remotely and we’re fully operational during this health crisis. Colleges are still moving forward with their Title IX and disciplinary actions, and many state and federal criminal proceedings are ongoing. We’re here for you 24/7.

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