Nearly two years after Florida State quarterback Jameis Winston was accused of sexually assaulting a woman, a hearing scheduled to begin Tuesday to determine whether the star athlete violated the school's code of conduct also represents the most high-profile challenge to how universities handle such cases.
Mandated under federal Title IX guidelines to investigate and adjudicate complaints of sexual harassment and violence, the school has drawn criticism from David Cornwell, an attorney advising Winston, who questions a system that can levy charges of sexual misconduct against students without charged students having protections afforded to criminal defendants.
While the federal government offers broad guidance on what schools' misconduct hearings should look like — essentially mandating equity for complainants and charged students — the process will be different from a court proceeding.
Winston will be allowed to speak, but his attorney cannot. The woman, a former Florida State student, also may speak, but an attorney advising her cannot. Florida State's rules allow Winston to question the woman, even though the Department of Education's Office for Civil Rights (OCR) does not recommend such a practice.
A state attorney declined in December 2013 to file criminal charges against Winston, but the school must meet a lower burden of proof in the student misconduct hearing, where the ruling is based on a "preponderance of evidence," as in a civil proceeding, instead of the proof beyond a reasonable doubt required in a criminal trial.
Cornwell is hardly the first to find fault with the process, and issues raised by raised by attorneys on both sides highlight the legal challenges that arise when schools are tasked with adjudicating potential sexual misconduct violations.
Andrew Miltenberg, a New York attorney who has represented nearly two dozen charged students, says Winston has received greater protections than many of the men he represents.
Although Winston has known about the allegations against him for nearly two years and had the school's investigative file for nearly a month, many charged students argue the federal government's mandate that schools complete investigations promptly leads to a rush to a hearing without a thorough gathering of evidence.
According to a database maintained by A Voice for Male Students, 55 students have filed lawsuits alleging that school misconduct proceedings violated their due process rights, harmed their reputations or deprived them of educational opportunities.
Milternberg says the current system begets slipshod investigations, little time to review charges and an inability to aggressively question witnesses. Add in a lower standard of proof, hearing officers who often have not been properly trained and lawyers barred from speaking on behalf of their clients, he says, and the result is charged students are at a disadvantage as schools bow to pressure from the federal government.
"You can't tell me there's a fairness in any of that," says Miltenberg, managing member of Nesenoff & Miltenberg, LLP. "A fairness may not be defending yourself in the way you would in a criminal case, but there's some greater fairness than is being afforded right now to accused or respondents in these types of cases."
Then again, concerns about fairness also have been raised for years by the other side — victims and their advocates. While they want a process that is equitable and fair to both students, they point out that protections in criminal court are not applicable in a school administrative hearing on an alleged conduct violation.
"The victim and the accused are supposed to be able to present their sides equally," says Laura Dunn, who founded SurvJustice to assist victims. "I think very few attorneys even realize that it is an administrative hearing. It's not civil. It's not criminal. And therefore the standards for due process are actually minimal.
"Notice and opportunity to be heard are the basics of due process. Everything else after that is really flexible."
Schools are often in the difficult position of trying to address sexual violence in a way that complies with federal law and makes their campuses safer while running the risk of litigation from either student.
They also have been under scrutiny since President Obama in January formed a task force to address sexual assault on college campuses and a bipartisan group of eight U.S. senators introduced a bill, the "Campus Safety and Accountability Act" in July, to strengthen penalties for schools that don't comply with the law and create greater resources for victims.
In April 2011, OCR issued a "Dear Colleague" letter to campuses, outlining schools' responsibilities regarding student misconduct cases under Title IX. The Department of Education has seen an increase from 11 complaints in the 2011 fiscal year to 96 in fiscal year 2014. It is currently investigating 88 schools, including FSU, for their handling of sexual violence.
With help from a vocal group of survivor activists experienced in filing complaints, students around the country have sought to hold schools accountable for their mishandling of these cases.
"I'm pleased about the progress that we've made, and we haven't hit the mountaintop yet," said Catherine Lhamon, the federal agency's assistant secretary for civil rights. "We still need to make our schools safer and ensure that we have fair and appropriate processes for all of our students."
In that environment, charged students have raised questions about basic due process and what is owed to them in proceedings with such high stakes. Uncertainty about the process may ultimately need to be sorted about by the Supreme Court, experts say.
"A whole generation of victims, survivors and accused students may have to suffer through a period while we wait for more specific guidance from the Supreme Court, and that itself is a due process challenge of the first order. It's not fair not to know what's fair," said Peter Lake, a professor of law at Stetson University and director the center for Excellence in Higher Education Law and Policy.
A PROPER DEFENSE?
Cornwell and lawyers for charged students argue they are better equipped than a college student to cross examine a witness or complainants and argue that that type of questioning is necessary to get to the truth of the matter while protecting their clients' rights.
OCR "strongly discourages" schools from allowing charged students from cross examining complainants as that might perpetuate the hostile environment.
While he's understands OCR's reasoning, Matt Triplett says that part of the "Dear Colleague" letter lacks legal justification. Triplett, an attorney who wrote about the letter in the Duke Law Journal while he was a student in 2012, says confronting the accusations against a person is fundamental to due process.
"This kind of cuts way too far into the rights of the accused," Triplett says.
Many schools have sought a compromise, allowing a complainant to testify and be questioned from a different room or behind a curtain. Others allow students to submit written questions for the hearing panel or officer to pose to the complainant.
In Winston's case, the hearing will be conducted by Major Harding, a 79-year-old former Florida Supreme Court justice retained by the school. FSU has not publicly said whether Winston will be allowed to directly question the woman. The school could seek the same compromise as other schools in allowing him to submit written questions to the hearing officer.
Miltenberg says allowing Harding to question the complainant would be a more reasonable compromise than expecting Winston to question her himself.
"Although the judge may not cross examine the accuser as well or as viciously as a defense counsel normally would, it'll be better than normally done by disciplinary councils or panels," said Miltenberg.
Brett Sokolow, president and CEO of The NCHERM Group, LLC, a consulting firm which advises schools as well as students, has provided materials to FSU in the hopes it would help prepare Harding for the meeting.
"Let's be honest, we're talking about someone who generationally (doesn't have) a lot in common with college students," said Sokolow, who has been retained as an expert witness for the woman. "It's hard to come in as a one-timer, whether you're a judge or not, from outside the college context and get that right."
Once the hearing is complete, Harding will be tasked with finding Winston responsible or not based on a preponderance of evidence, the standard outlined in the 2011 OCR letter.
Although Lhamon estimates 80% of schools already were using that standard when the letter was released, it has drawn perhaps the sharpest criticism. The OCR letter argues it is appropriate because the Supreme Court used it in civil rights litigation regarding discrimination on the basis of gender, and it is the standard OCR uses in deciding on school compliance.
"They did that because it is the appropriate standard," Lhamon said. "That's what the courts have said over and over again about the best and fairest way to address civil rights issues."
Miltenberg argues sanctions — from writing a paper up to expulsion — following an unfair process can have a lifelong impact on charged students. A student found responsible of sexual misconduct might not be able to get into grad school if that is noted on his transcript, he says.
At FSU, 29 cases of sexual misconduct, which can range from harassment to assault, were adjudicated from 2011-13, according to data provided in response to a public records request by USA TODAY Sports. Of those cases, five of which were pending when FSU released the information in June, 18 students were found responsible.
Twelve of them received probation, three were expelled, one was suspended, one withdrew from school and one received "educational sanctions."
With such high stakes for both parties, lawyers such as Miltenberg argue for greater clarity on the rights of students. The "Dear Colleague" letter notes that "public and state-supported schools must provide due process to the alleged perpetrator."
But attorneys say it's unclear what due process looks like in a higher education context. The absence of more guidance beyond a basic requirement of equity from the Department of Education, a case appealed to the Supreme Court could be needed to provide clarity.
"These are primitive issues that have been lingering for decades, and it plays itself out in cases like Winston because, to some extent, nobody really knows what the outer boundaries of fair player in higher education and due process look like," Lake said.
"We assume it has something to do with notice and an opportunity to be heard, but the people that really need to tell us the most basic information have hesitated to do that."
Read more at: http://www.usatoday.com/story/sports/ncaaf/2014/12/01/jameis-winston-florida-state-misconduct-hearing-sexual-assault/19754047/