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Education Department finds school violated rights of the accused

In an extraordinary finding, the Education Department determined the rights of a student accused of sexual assault were violated at Wesley College in Dover, Del.

In all but one instance (that I know of) the Department's Office for Civil Rights has only found schools to have violated the rights of accusers, while imposing new and conflicting rules on all schools. In its 2011 Dear Colleague Letter, which forced schools to adjudicate campus sexual assault using the barest of protections for accused students, OCR set the groundwork for a flood of civil rights violations for accused students.

But now it appears a male accused student has actually won a victory with OCR. In a letter sent to Wesley College on Wednesday, OCR concluded its investigation of the school and identified a number of troubling aspects of the so-called "investigations" conducted by Wesley against students accused of sexual assault.

Wesley was found to be punishing accused students with an "interim suspension" based solely on an accusation, before any investigation — or even interview with the accused — had been conducted. In at least one case, the accused student was not even interviewed during the investigation and was provided the wrong information about the school's policies and procedures, making him unprepared for his hearing, as he thought it was just his first interview. This student was also not provided a copy of or the information contained in the incident report against him prior to the hearing.

In other cases, accused students were not able to provide witnesses or other evidence of their innocence at the hearing.

In addition, OCR determined that Wesley failed to retain records and information regarding the investigations, resolutions and hearings of sexual assault complaints. The school was deleting them just 10 days after the hearing. This, OCR wrote, resulted in information not being available to the federal government during its investigation.

The student who filed the complaint, alleging his anti-sex discrimination rights under Title IX were violated, had been included in a case involving two students engaging in consensual sexual contact that was live-streamed to two other students. The woman who engaged in the sexual contact said she did not consent to being filmed, but also said that the accused student who ultimately filed the OCR complaint was "not involved in the planning or execution of the live streaming," according to the letter from OCR.

But a school administrator pursued the case against this particular accused student because other witnesses identified him. Neither the accused student nor the students actually involved in the live streaming were given an opportunity to defend themselves against an interim suspension. The students were all given notices of the charges against them that differed from notices sent to previous accused students in that these notices didn't mention an "educational conference" that was the opportunity to present their version of events.

"The accused Student asserts that as a result of his confusion regarding the student conduct process, he believed that the formal hearing was, in fact, an informal educational conference and/or Resolution without a hearing," OCR wrote.

Further, OCR criticized Wesley for detouring from its policies that gave accused students the ability to question witnesses at the hearing. The student who filed the OCR complaint was not even made aware that one of the other accused students had claimed he was involved in the live streaming.

None of the accused students in this case were provided the evidence against them prior to the hearing, and were thus unable to mount a reasonable defense. In addition, the student who filed the complaint could not have his witnesses testify, as the school refused to excuse them from class. This student had wanted the female accuser to testify on his behalf as well, but she was barred from doing so because of a no-contact order put in place at the start of the investigation.

While it's good that OCR recognized that accused students have rights, this letter is not entirely one-sided. OCR wants Wesley to determine whether "it engaged in a sufficient level of inquiry and consideration of the rights of the students" involved in this case and others. If the school determined it was in the wrong, it should undo the students' suspensions. So the school, which failed the students in the first place, is now allowed to determine whether it was in the wrong.

Part of the resolution also requires proper training of the school's Title IX coordinators. We know where this is going, as these administrators are trained to believe accusers and look for ways to corroborate their stories, instead of determining the truth.

Still, it is good to see OCR acknowledge that accused students have a right to be heard. This ruling might be useful for lawyers adjudicating similar cases in civil court.

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