Title IX Disciplinary Process Unfair to Accused Students

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Due process issues continue to be at the forefront of national discourse. Whether it be Justice Kavanaugh’s confirmation or the Covington Catholic controversy, these issues are emotional and contentious. The next due process debate appears to be the U.S. Department of Education’s proposed new Title IX regulations that would afford accused students additional due process protections. These reforms are needed given that universities currently employ inquisitorial type proceedings where the accused appears to be deemed guilty until proven innocent. Those willing to stand up for due process are unfortunately immediately labeled as “victim blamers.”

This use of pejoratives is unfortunate given that courts have found Title IX disciplinary proceedings “fundamentally flawed” and inherently unfair to accused students. Indeed, one federal judge described Brandeis University’s disciplinary process as being “closer to Salem 1692 than Boston 2015.” He further stated:

“Whether someone is a ‘victim’ is a conclusion to be reached at the end of a fair process, not an assumption to be made at the beginning… If a college student is to be marked for life as a sexual predator, it is reasonable to require that he be provided a fair opportunity to defend himself and an impartial arbiter to make that decision.”

Similarly, California appellate courts have recently reversed three University of Southern California (USC) Title IX disciplinary decisions, finding that USC’s Title IX investigations were unfair to the accused students.

In the earliest of the three recent appellate court reversals, John Doe filed a petition for a writ of administrative mandamus after USC expelled him for allegedly sexually assaulting a female student Jane Roe. University of Southern California, 2018 WL 6499696 (Cal. Ct. App. Dec 11, 2018). As alleged by Jane, she and John both attended a “paint party,” where attendees splattered paint on each other and drank alcohol. Due to the amount of alcohol she consumed, Jane’s memory of the alleged events leading up to and including the alleged sexual assault was fuzzy. Prior to attending the party, John and Jane had never met.

Ultimately, John and Jane ended up back in Jane’s apartment, where they had sex. Initially, Jane could not recall with whom she had sex and whether she consented, but later identified John as the person with whom she had sex.

Jane reported the matter to the USC Office of Student Judicial Affairs and Community Standards and accused John of sexually assaulting her. Dr. Kegan Allee served as USC’s Title IX investigator and initiated an investigation. Dr. Allee interviewed Jane. John chose to not make a statement. During the course of her investigation, Dr. Allee also relied on the preliminary, and in some instances, inconsistent statements given by a variety of witnesses to another USC investigator. Dr. Allee did not personally interview these witnesses. Instead, Dr. Allee made credibility determinations based upon her review of witness statement summaries prepared by the other investigator.

John’s attorney requested that Dr. Allee retrieve Jane’s clothing and bedding from the night of the alleged assault, so he could have them independently analyzed to determine whether they tested positive for the presence of blood as reported by Jane or, alternatively, paint from the “paint party.” The attorney also requested Jane’s medical records. Dr. Allee secured neither the clothing and bedding nor the medical records. Further, Jane asserted that the clothing and bedding had been discarded and could not be produced.

At the conclusion of her investigation, Dr. Allee found “Mr. Doe responsible for violating the student code of conduct.” USC then expelled John.

Under a California procedure, John subsequently filed a petition for a writ of administrative mandamus, alleging that he had not received a fair hearing. On appeal, the state appellate court ruled that USC had indeed violated John’s rights by not affording him a fair hearing. In reaching this conclusion, the appellate court noted that “[i]n disciplining college students, the fundamental principles of fairness require, at a minimum, ‘giving the accused students notice of the charges and an opportunity to be heard in their own defense.’” The appellate court further noted that a university disciplinary hearing was not the same as a criminal proceeding, and federal constitutional guarantees were not applicable to private colleges like USC. Nevertheless, the court stated that constitutional “[d]ue process jurisprudence … may be ‘instructive’ in cases determining fair hearing standards for disciplinary proceedings at private schools” under California law.

The appellate court concluded that the process was unfair because the adjudicator did not personally interview the key witnesses and assess their credibility.  The court also concluded that the hearing was unfair because Dr. Allee did not attempt to recover potentially exculpatory evidence, specifically the bedding and clothes from the night of the encounter.

After granting John’s petition, the court further held that if USC chose to hold another hearing, it should allow John to submit questions for the adjudicator to ask Jane. “[A]s part of the adjudicator’s assessment of credibility, an accused student must have the opportunity indirectly to question the complainant.”

Following the opinion of the case discussed above, the California appellate courts reversed two additional USC Title IX disciplinary decisions. These appellate courts found USC’s Title IX investigatory process “fundamentally flawed” under California law because, among other things, the Title IX process did not allow the Accused student the opportunity to cross-examine the complaining witness.

Increasingly, collegiate disciplinary hearings are resulting in litigation between disciplined students and universities, often concerning alleged violations of constitutional due process, breach of contract, and Title IX violations. Regardless of the theory under which the complaint is brought, these complaints primarily allege that the collegiate disciplinary procedures were unfair.

As previously mentioned, the U.S. Department of Education’s proposed new Title IX regulations seek to correct the unfairness inherent in these disciplinary proceedings. These proposed regulations would, among other things, create safe harbors for colleges and universities whose disciplinary processes provide for certain elements of due process.

Although these issues are emotional, universities in this context have similar roles to that of prosecutors. As such, these institutions should take heed to the following guidance from the Supreme Court: the role of the prosecutor “is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a … prosecution is not that it shall win a case, but that justice shall be done.”