Op-Ed: To be fair too all, campus sexual misconduct investigations need reform
Already under scrutiny because of increased attention to the problem of campus sexual assaults, colleges and universities are now under fire for how they respond to such incidents.
While there have been efforts to quantify precisely the number of assaults, such information is difficult to obtain. There is no question, however, that assaults happen, and when they do, they are front-page news.
Colleges and universities are required under strict Title IX rules to aggressively investigate any form of sexual harassment complaint. Schools that do not comply with the Department of Education’s Office of Civil Rights (OCR) guidelines risk losing critical federal funding.
The current procedures used by schools for handling disciplinary proceedings in sexual misconduct investigations and disciplinary proceedings are deeply flawed, and they are the subject of an ongoing debate on how they should be reformed.
For instance, OCR emphasizes that procedures used to resolve sexual violence complaints must meet the Title IX requirement applying the “preponderance of the evidence” standard of proof. This standard can result in decisions with harsh and lasting penalties based on a slightly greater than 50/50 chance that the accused is responsible.
The rules themselves, combined with great pressure on schools from victims’ advocates, OCR, and others to be deferential to the complainant’s position, have the potential to create a bias against accused students.
Some believe that all of this is further exacerbated by a potential conflict of interest on the part of schools faced with significant funding losses to find in favor of the complainant. More often than not, schools simply lack the ability and resources to effectively investigate and decide accusations of sexual misconduct.
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While OCR’s efforts to address the problem of campus sexual assault should be applauded, its attempt to remedy the schools’ historically perceived lack of proper focus has led the pendulum to swing too far in the opposite direction.
Under the current system everyone loses: accused students are deprived of fundamental fairness in the adjudicatory process, complainants’ experiences are unintentionally eroded and undermined, and the colleges and universities are trapped between the two.
Increasingly, students who have been found responsible for sexual misconduct by their schools are suing for unfair treatment and lack of due process, and they are prevailing in court.
Courts, and notably several from Virginia, have recognized that the processes utilized by certain universities for investigating and disciplining students accused of sexual misconduct fail to comport with due process.
For example, in Doe v. Rector and Visitors of George Mason University, the court found that the procedures followed by the university had deprived the accused student of a protected liberty interest — the charge of sexual misconduct plainly called into question the plaintiff’s good name, reputation, honor, and integrity, altered his legal status as a student, and had the potential to impact his future educational and employment endeavors.
The court ruled that the university failed to afford a constitutionally adequate process — it did not provide the student with notice of the full scope of the charges against him, which in turn impacted his opportunity to be heard and put on evidence that addressed the context in which the charges arose.
Administrators also had off-the-record and ex parte meetings with the complainant without informing the accused student what had transpired in the meeting; one administrator assigned the appeal to himself despite having had extensive contact with the complainant and admitted he had prejudged the case.
Sanctions were also imposed on the student without a basis for the decision. The court held that accumulation of procedural irregularities resulted in a violation of due process.
In Doe v. University of Southern California, the court partially affirmed a student’s petition for a writ of administrative mandate challenging his suspension. The court found that the student had been deprived of notice and hearing where he was not provided any information about the factual basis of the charges against him, he was not allowed to access any evidence used to support those accusations unless he actively sought it through a written request, and he was not provided with any opportunity to appear directly before the decision-making panel to rebut the evidence presented against him.
Concerns over the partiality of investigators and adjudicators have also been the subject of a number of lawsuits. For example, in Doe v. Brandeis University, the District of Massachusetts critiqued Brandeis University’s Special Examiner Process, in which a single individual was essentially vested with the powers of an investigator, prosecutor, judge, and jury; the court remarked that the dangers of combining these powers in a single individual, with few rights to appeal and review, are obvious.
Similarly, in Doe v. Washington and Lee University, the court concluded that bias existed on the part of the university’s Title IX officer that was material to the outcome of the student’s disciplinary proceeding, due to the considerable influence she appeared to have wielded in those proceedings, where the Title IX officer had presented an article positing that “sexual assault occurs whenever a woman has consensual sex with a man and regrets it because she had internal reservations,” a factual situation paralleling the circumstances under which the student was found responsible for sexual misconduct.
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Many organizations are participating in the conversation about how to reform the flawed system, including the American College of Trial Lawyers (ACTL). After careful study, ACTL developed a set of recommendations for improving the process.
ACTL’s recommendations endorse certain principles that are the cornerstone of the American legal system. These principles include the right to be notified of the nature of the complaint, the right for both the complainant and the accused to have the assistance of legal counsel, the availability of some form of cross examination to explore the statements of witnesses, and the necessity of a fair and impartial decision-maker.
ACTL believes that the burden of proof should be “clear and convincing evidence,” an intermediate standard that attempts to strike balance between the “preponderance” test currently required by OCR and endorsed by advocates concerned with the possible impact of adversarial proceedings on victims, and the “reasonable doubt” standard favored by criminal defense lawyers.
The intermediate standard is appropriate because of the absence of many procedural safeguards available to litigants in the criminal justice system, coupled with the significant long-term impact of disciplinary proceedings on the participants.
These steps would serve the administration of justice and ensure the confidence of participants and the public in the fairness of Title IX investigations on campus.
Meanwhile, new leadership at the DOE and OCR should open the door for changes in the agency’s official policies and in the scope and focus of its enforcement activities. It would be difficult for most schools to act on their own to improve the process without OCR support.
Until then, cases that are mishandled for either the complainant or the accused bring serious consequences, ranging from public humiliation to the tarnishing of a reputation and loss of long-term educational and employment opportunities. The price for institutions, both reputational and monetary, can be monumental as well.
It is time for reform to ensure fairness to all.
