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In Sexual-Misconduct Cases, Hear the Facts by Gary Pavela


Many years ago, Alfred P. Murrah, then a federal court-of-appeals judge, told me that judges must "hear cases before they decide them." I was an inexperienced law clerk who needed that advice, but the wisdom in Judge Murrah’s observation also constitutes good guidance for colleges struggling to resolve sexual-assault allegations.

Administrators are under intense pressure to hold students accountable for sexual misconduct. If that pressure results in eviscerated due process and ideological fact-finding—­basically, deciding cases before hearing them—aggrieved plaintiffs will turn to state and federal courts for relief. Early indications from several decisions this year suggest judges may be receptive to some of their arguments.

A decision last month in King v. DePauw University, for example, is especially instructive. The federal judge in that case issued a preliminary injunction requiring the fall-2014 reinstatement, "without restriction," of Benjamin King, a student suspended for sexual assault. The court rejected King’s argument that he was the victim of gender-based discrimination but concluded he was "likely to succeed in demonstrating at trial that DePauw’s decision to find him liable for sexual misconduct ... was reached in an illegal, arbitrary, or capricious manner."

DePauw had created a Sexual Misconduct Hearing Board consisting of trained administrative staff members appointed by the assistant dean of students. The court challenged the board’s core finding that "it should have been apparent" to King that the accuser "was extremely intoxicated, to the point that she could not give consent" to sexual activity. "Quite frankly," the judge wrote, "the Court sees very little evidence that supports this conclusion."

The court also found it "problematic" that the investigation consisted almost exclusively of interviews of witnesses suggested by the accuser: "There was no attempt to use those interviews to ferret out other students who might have additional information." This is precisely the kind of concern raised by accused students who assert that colleges are not evenhanded in investigating sexual-misconduct allegations.

A determined effort to punish sexual misconduct is necessary but must be balanced by an equally passionate commitment to disciplined, impartial fact-finding. The following suggestions may help define the appropriate balance:

"Due process" is more than a procedural checklist. Due process encompasses a judicial temperament, as well as a list of procedures. Judge Murrah’s advice to "hear the case before deciding it" captures the essence of what a judicial temperament means. This kind of truth seeking requires investigators and hearing-board members to follow the facts wherever they lead, regardless of ideological predispositions. Since no checklist can encompass all contingencies, it is the "judicial temperament" component of due process—vitally important to both accuser and accused­—that requires sustained attention as we appoint and train Title IX coordinators and hearing-board members.

Reasonable levels of procedural due process promote a sense of fairness that strengthens communities. The 1997 Office for Civil Rights Sexual Harassment Guidance states that "procedures that ensure the Title IX rights of the complainant while at the same time according due process to both parties involved will lead to sound and supportable decisions." That perspective is rarely heard in 2014. Colleges and federal regulators increasingly articulate a "victim centered" approach conveying a subliminal message that due process to the accused is a legalistic impediment. Accused students and their families quickly perceive this attitude and feel driven to seek a more neutral forum in the courts. Our educational efforts will be undone if groups of students eventually ally with "plaintiffs" or "defendants" rather than with a community effort to reduce sexual violence.

Determining a level of due process that generates broad support is best done locally. I managed the student-conduct system at the University of Maryland for more than 25 years. Much of my time was spent trying to convince student and faculty leaders that accused students should be advised but not actively represented by lawyers. I eventually realized, however, that our efforts to increase sanctions for serious misconduct generated resistance if we minimized the role of counsel. After many compromises (including limiting the role of lawyers in academic-integrity cases but not other kinds of serious offenses), we developed a system that seems to work for College Park.

This example of internal compromise—typically seen as a component of institutional academic freedom—should be remembered as regulators and lawmakers endeavor to micromanage college sexual-assault policies from afar. If change is imposed from without, the legitimacy of college rules is likely to be undermined within. Experienced educators know it is the sense of legitimacy in their policies that will determine their ultimate success in influencing student behavior.

A sense of legitimacy in university policies is also enhanced when students are given responsibility to help define and enforce them.Except on smaller campuses where issues of confidentiality can be insurmountable, the current trend of removing student members from sexual-assault hearing panels looks suspiciously like an effort to predetermine results. Adult college students sit on juries in the most serious criminal cases; it is intellectually indefensible to argue that they lack comparable capacity in campus disciplinary proceedings.

Indeed, on troublesome issues like assessing "consent" to sexual contact, we need student perspectives to fashion policies that will attract widespread support. Based on past experience, too many Title IX "experts" gave us consent definitions that played out in late-night television comedy routines rather than in the behavior of our students.

"Mandatory sentencing" policies widely criticized in the criminal-justice system have no place on campus. Activists who demand automatic expulsion in sexual-misconduct cases don’t realize more acquittals will probably result. Colleges typically resolve sexual-misconduct allegations no prosecutor would pursue. In many cases both parties were drinking; both may have hazy recollections of events; one or both were inhibited about verbalizing sexual wishes; words or actions were ambiguous or misconstrued. When these factual patterns arise, thoughtful people on hearing panels­—given no discretion—may refuse to find the accused student responsible. Complainants will be outraged and the benefits associated with more moderate penalties lost.

The purpose of mandatory sanctioning is to preclude thinking, a strategy incompatible with the aims of education. A better idea is to guide and structure discretion, without eliminating discretion altogether.

A concluding observation: The philosophical imperative to "know thyself" applies with as much force to institutions as to individuals. Do colleges have the capacity to resolve sexual-assault cases fairly and accurately? Powerful internal and external constituencies pull them in multiple directions, yet decision makers have little of the training or protections of state or federal judges.

Failures in addressing sexual misconduct run the gamut from a rush to judgment in the Duke-lacrosse case to many examples of inexcusable indifference to sexual misconduct by athletes. Furthermore, we’re subject to ethical questions too long swept under the rug. Are we creating "special" sexual-assault tribunals available to comparatively wealthy college students who want to avoid the indignities of the criminal-justice system? If so, do we help perpetuate those indignities for the less privileged?

Polarization over sexual-assault adjudication will accelerate as more lawsuits are brought by accused students. Educators who acquire the discipline to hear cases before deciding them will weather the storm. Those who follow ideological imperatives will foster a regrettable, but inevitable, result: national legislation requiring that sexual-assault cases be resolved in criminal courts, not on university campuses.

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Gary Pavela is a fellow of the National Association of College and University Attorneys.

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