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February 1, 2019

The Evolving High Stakes World of Defending Students in College Title IX Proceedings

This article originally ran in PACDL's "For The Defense" magazine, Volume 4, Issue 1, February 2019.

 

As attorneys who have represented more than 100 students nationwide in college Title IX proceedings or in litigation against colleges in the wake of such proceedings, we often are asked whether our job is getting easier under the new Administration.  The answer is: yes, and no.  Are there potentially more tools available today than there were in 2012 to defend an accused student?  Yes, to some extent, given the impact of court decisions on the conduct of internal disciplinary procedures; and, a resounding yes if the Department of Education’s recently proposed Title IX regulations go into effect as drafted.  Do some aspects of these representations remain unchanged even with advances achieved through the evolving case law, a current Administration that has focused more on the due process rights of accused students, and the recently proposed regulations?  Yes, and regardless of any of these recent changes, attorneys who represent students in these circumstances still must navigate a unique and evolving world that combines elements of internal administrative proceedings and possible civil proceedings, against a backdrop of potential criminal exposure and a climate on campuses that favors the credibility of alleged victims over the accounts of accused students.[1]   

To set the stage: More than seven years ago, in April 2011, the Office for Civil Rights (“OCR”) of the Department of Education (“DOE”) issued a “Dear Colleague Letter” addressing student-on-student sexual harassment and sexual violence (“2011 DCL”).  With the 2011 DCL, the DOE instructed colleges and universities on how to respond to and adjudicate claims of sexual misconduct in compliance with Title IX. [2]  In 2014, the DOE provided further guidance to “clarify the legal requirements and guidance articulated in” its 2011 DCL and previous guidance (the “2014 Q&A”).[3]  To avoid an enforcement action by the OCR and a possible loss in federal funding, colleges and universities revamped their sexual misconduct disciplinary processes to conform to the 2011 DCL and 2014 Q&A. These efforts, in the name of providing justice for victims of sexual assault, often abridged or eviscerated the due process rights of accused students by lowering the standard of proof, eliminating cross examination rights and, in many instances, abolishing hearings of any kind.[4]

In the wake of the 2011 DCL, the terrain was decidedly slanted in favor of the rights of complainants. The 2011 DCL was lauded by advocates for sexual assault survivors while it faced criticism by due process advocates for its failure to protect the rights of the accused.  For example, the 2011 DCL required colleges and universities to employ a lower standard of proof, i.e., a preponderance of the evidence (as opposed to a clear and convincing evidence standard), to adjudicate claims of sexual misconduct. And, it did not place the burden on colleges and universities to gather exculpatory evidence for the accused student, hold a hearing to adjudicate the facts of the case, or provide students with the opportunity to cross-examine each other or witnesses. 

Perpetuating this imbalance, the DOE stated in its 2014 Q&A that it discourages the parties from personally cross-examining each other during a hearing on alleged sexual violence, and that a “school may choose, instead, to allow the parties to submit questions to a trained third party (e.g., the hearing panel) to ask the questions on their behalf.”  The DOE also recommended that the third party “screen the questions” and “only ask those it deems appropriate and relevant to the case.” [5]  By allowing a school official to personally select and potentially rephrase questions to ask a complainant and to curtail the ability for follow-up questions, the DOE deprived the accused student of the ability to test the credibility of a complainant through cross-examination.  Additionally, the guidance encouraged the use of “trauma informed” investigative techniques and hearing processes which, as often interpreted by school officials, would lead to a record that failed to explore exculpatory evidence. [6] 

Thus, it is not surprising that recent years have been marked by public criticism of these misconduct procedures from numerous legal groups and scholars[7] as well as hundreds of lawsuits filed by accused students against their institutions for disciplining them for alleged sexual misconduct through the use of biased and unfair proceedings that impaired their right to defend themselves or denied them basic due process protections.[8] 

Recent Changes in Response to the 2011 DCL and the 2014 Q&A:  In September 2017, under the new Administration, the DOE responded to the concerns raised about the 2011 DCL and 2014 Q&A and withdrew those documents as guidance, and issued new interim guidance (“September 2017 Guidance”).[9]  This new guidance attempted to restore elements of due process to, and ensure greater fairness in, campus disciplinary proceedings. For example, it clarified that the burden is on the school to gather both inculpatory and exculpatory evidence to reach a fair and impartial determination.[10]  In our experience, and notwithstanding this effort by the DOE, most institutions have continued to operate under their old policies and procedures for the past year, perhaps awaiting the issuance of the recently proposed regulations.  However, we did notice some incremental shifts.  For example, some schools implemented policies allowing for informal resolutions of Title IX complaints, a significant change from prior guidance expressly forbidding mediated resolutions, which many colleges and universities interpreted to mean that all complaints had to be handled through a formal process.  Although the new proposed federal regulations (discussed further below) incorporate several features of the September 2017 guidance, they are more comprehensive, particularly with respect to the right to cross-examination.[11]  

Considerations in defending an accused student remain unchanged:  Regardless of whether the proposed regulations (discussed below) are adopted in whole or in part, representing a client facing a Title IX investigation has required and will continue to require an understanding and evaluation of numerous considerations, including: (1) the facts that gave rise to the allegation and the relevant policy provisions regarding definitions of terms such as consent, incapacitation, or sexual assault; (2) the college’s policies and procedures governing its investigation, manner of decision-making, and internal appeals; (3) whether (and for how long) the university will pause its investigation while law enforcement’s investigation proceeds; (4) whether the university will use an internal investigator or an outside investigator; (5) the opportunities to present evidence to the investigator and/or at a hearing, and the opportunities to review any evidence collected by the university and to respond to that evidence; (6) whether your client has a learning disability that would require an accommodation during the disciplinary process; (7) coordination with criminal defense counsel to determine the extent to which a client, who also faces a criminal investigation and/or prosecution, can communicate with university personnel to defend himself during the disciplinary process; (8) whether your client has criminal exposure for other potentially related conduct, such as hazing or furnishing alcohol to minors;[12] (9) the extent to which your client will be permitted to provide an opening statement and/or closing statement and to question the complainant and witnesses during a hearing; (10) whether the determination of your client’s responsibility for a violation of university policy will be made by the university’s investigator, a panel, or a hearing officer; (11) whether the university separates the responsibility-finding phase from the sanctioning phase; (12) whether your client may submit an impact statement and character witnesses; and (13) what appeal rights exist and, if so, the limits on those rights.  

With these considerations in mind, counsel must evaluate if a college’s actions have deprived the student of his constitutional or contractual rights and if he faces an interruption to his education.  While pressing for her client’s rights within the disciplinary process itself, counsel also must bear in mind the need to develop a record for potential civil litigation and must also consider the timing of any discussions with the college’s general counsel, if they are to happen at all.  At times, counsel also will need to prepare a civil action complaint along with motions for a temporary restraining order (TRO) and expedited discovery while the disciplinary matter proceeds. 

A Greater Arsenal for Defending an Accused Student If the Recent Proposed Regulations are Adopted:  Even with the recent proposed regulations, counsel still will need to evaluate these numerous considerations; but, counsel’s ability to defend her client will  benefit from the new regulations, if implemented as proposed.  Although these proposed regulations are subject to a comment period and are not yet finalized,[13] they show the DOE’s recognition of the recent developments in the case law (particularly decisions by the Sixth Circuit Court of Appeals pertaining to respondents’ cross-examination rights) that highlight the need for greater due process protections for accused students in college disciplinary proceedings.[14]   

The most notable feature of the proposed regulations is the requirement that universities allow for live hearings with cross-examination by a party’s advisor. The proposed regulations require a university’s “decision-maker” to permit each party’s advisor to cross-examine the other party and any witnesses, which includes the opportunity to ask all relevant questions and follow-up questions, including questions that challenge credibility.[15]  To prevent universities from unfairly restricting cross-examination, the proposed regulations require the decision-maker at the hearing to “explain to the party’s advisor asking cross-examination questions any decision to exclude questions as not relevant.”[16]  Further, in reaching his or her determination regarding responsibility, the decision-maker may not rely “on any statement of that party or witness” who does not submit to cross-examination at the hearing.”[17] This latter proposed provision is critical because it would prevent a college from finding a student responsible for sexual misconduct based solely on the statement of a complainant who refuses to participate in the hearing. 

While colleges and universities often did not allow exceptions to their policies that excluded information about the sexual history of a complainant, the DOE has proposed a more balanced approach to this type of evidence by drawing on the rape shield protections set forth in Federal Rule of Evidence 412.[18] In this regard, cross-examination at a disciplinary hearing would continue to exclude “evidence of the complainant’s sexual behavior or predisposition,” but would allow evidence about the complainant’s sexual behavior if it is offered “to prove that someone other than the respondent committed the conduct alleged by the complainant, or when evidence about specific incidents of the complainant’s sexual behavior with respect to the respondent is offered to prove consent.”[19]   This latter category of evidence can be particularly important in cases relating to the manner in which a respondent and complainant communicated, verbally or through physical expressions, about consent to sexual contact during the course of an ongoing relationship. 

            Students who also are under criminal investigation may benefit from the DOE’s proposed regulation that allows a university to delay its disciplinary proceeding if there is concurrent law enforcement activity. Universities would have discretion to pause their investigations or campus proceedings when a student is under criminal investigation, which would give the student time to evaluate whether to speak with law enforcement and the extent to which he can participate in the university’s process.[20]  A student who does not provide his side of the story in a campus disciplinary proceeding almost certainly will be found responsible and sanctioned. And, if a student must refrain from speaking during the campus disciplinary proceeding because of the advice of counsel in connection with a criminal matter, then counsel must consider other ways in which the student may be able to communicate to the university about his version of events. For instance, a student could provide electronic communications helpful to his defense or could suggest witnesses who might offer exculpatory evidence.

            Through the proposed regulations, the DOE also has recommended important limitations on the use of the preponderance of the evidence standard by colleges and universities.  The proposed regulations would allow a university to employ the preponderance of the evidence standard to find a student responsible for sexual misconduct only if the university uses that standard for conduct code violations that carry the same maximum disciplinary sanctions (i.e., expulsion or suspension) and the university applies that standard for adjudicating complaints against employees, including faculty.  In other words, if a university uses a clear and convincing evidence standard to adjudicate a claim of plagiarism that could result in the expulsion of an accused student, or it uses that standard to adjudicate a claim of sexual harassment against a professor, then it also must use a clear and convincing standard to adjudicate claims of sexual misconduct against students.[21]

Even with the increased pressure exerted by courts and the DOE on colleges and universities to incorporate greater due process protections for accused students in campus disciplinary proceedings, the path ahead is far from clear for respondents facing allegations of sexual misconduct.  If/when the DOE’s proposed regulations go into effect, schools will be forced to revise their investigation and hearing policies and re-train administrators responsible for the implementation of those policies.  Attorneys representing students in these circumstances must remain aware of the evolving procedures and political climate of the institutions with an eye toward protecting their clients’ rights in the disciplinary proceedings and making an effective record for civil litigation should that become necessary.

 

Patricia M. Hamill is the Chair of the Title IX, Due Process and Campus Discipline practice at Conrad O’Brien, PC.  She represents college students and professors nationwide who are subjected to campus disciplinary proceedings or who have been disciplined by their colleges for alleged sexual misconduct following such proceedings. Patricia often attempts to resolve cases behind the scenes.  Where resolution cannot be achieved, she has filed lawsuits for breach of contract, violation of Title IX (or other civil rights statutes) and tort liability on the basis that colleges’ investigation and adjudication procedures failed to ensure the students’ fundamental due process rights, discriminated against them on the basis of sex and breached the schools’ contractual obligations. In addition to her nationwide Title IX practice, Patricia is a frequent speaker on Title IX litigation and related issues to audiences of higher education Title IX coordinators, advocacy groups, and attorneys. Outside of the Title IX arena, Patricia is a commercial litigator who also represents clients regarding white-collar and internal investigations.

 

Lorie K. Dakessian is the Vice Chair of the Title IX, Due Process and Campus Discipline practice at Conrad O’Brien, PC.  She represents college students and professors who are subjected to campus disciplinary proceedings or who have been disciplined by their colleges for alleged violations of sexual harassment and misconduct policies following such proceedings to ensure that each client understands the university’s process, seeks procedural safeguards, and is afforded a fair hearing.  Lorie also represents complainants who raise and pursue sexual assault or harassment claims. She works closely with students and their families to help them navigate and fully prepare for investigations and hearings and, is experienced with working with students whose situations may be complicated by mental health concerns or the need for disability accommodations. In addition to her representation of college students, Lorie represents clients in several practice areas, including white-collar and internal investigations, complex commercial litigation, and data privacy matters. She also is a Certified Information Privacy Professional (CIPP/US), the global standard for privacy certification.

 

 

[1]              We note that it is our practice is to represent students only in Title IX matters or civil litigation arising from such matters and, in the event of a concurrent criminal investigation, to work closely with separately retained criminal defense counsel.

 

[2]              The Department of Education explained that its 2011 DCL supplemented its Revised Sexual Harassment Guidance issued in 2001 (“2001 Guidance”) by “providing additional guidance and practical examples regarding the Title IX requirements as they relate to sexual violence,” and identifying “proactive efforts schools can take to prevent sexual harassment and violence, and by providing examples of remedies that schools and OCR may use to end such conduct, prevent its recurrence, and address its effects.” https://www2.ed.gov/about/offices/list/ocr/letters/colleague-201104.pdf (last accessed December 2, 2018).

 

[3]              April 2014 Questions and Answers on Title IX and Sexual Violence issued by the Department of Education, Office of Civil Rights: https://www2.ed.gov/about/offices/list/ocr/docs/qa-201404-title-ix.pdf (last accessed December 2, 2018).

 

[4]              See e.g. Doe v. Brandeis Univ., 177 F. Supp. 3d 561, 572 (D. Mass. 2016) (noting, “In recent years, universities across the United States have adopted procedural and substantive policies intended to make it easier for victims of sexual assault to make and prove their claims and for schools to adopt punitive measures in response… The goal of reducing sexual assault, and providing appropriate discipline for offenders, is certainly laudable.  Whether the elimination of basic procedural protections – and the substantially greater risk that innocent students will be punished – is a fair price to achieve that goal is another question altogether.”) 

 

[5]              April 2014 Questions and Answers on Title IX and Sexual Violence issued by the Department of Education, Office of Civil Rights: https://www2.ed.gov/about/offices/list/ocr/docs/qa-201404-title-ix.pdf (last accessed December 2, 2018).

 

[6]              Id.

 

[7]              See e.g., American College of Trial Lawyers’ White Paper on Campus Sexual Assault Investigations (March 2017),

https://www.actl.com/docs/default-source/default-document-library/position-statements-and-white-papers/task_force_allegations_of_sexual_violence_white_paper_final.pdf;

Elizabeth Bartholet, Nancy Gertner, Janet Halley & Jeannie Suk Gerson, Fairness for All Students Under Title IX (August 21, 2017) https://dash.harvard.edu/handle/1/33789434; and

Open Letter from Members of the Penn Law School Faculty, Sexual Assault Complaints: Protecting Complainants and the Accused Students at Universities, Wall St. J. Online (2015),

http://online.wsj.com/ public/ resources/ documents/ 2015_ 0218_ upenn.pdf.

 

[8]            Proposed Rule by the Department of Education on Nondiscrimination on the Basis of Sex in Education Programs or Activities Receiving Federal Financial Assistance, 83 FR 61462,  https://www.federalregister.gov/documents/2018/11/29/2018-25314/nondiscrimination-on-the-basis-of-sex-in-education-programs-or-activities-receiving-federal (last accessed December 2, 2018), citing KC Johnson, Judge Xinis’ Outrage, Acad. Wonderland: Comments on the Contemp. Acad. (April 3, 2018),  https://academicwonderland.com/ 2018/ 04/ 03/ judge-xinis-outrage/ (over 200 students have sued their colleges over due process issues since the 2011 Dear Colleague Letter) and KC Johnson, Pomona, the Courts, & Basic Fairness, Acad. Wonderland: Comments on the Contemp. Acad. (Dec. 8, 2017), https://academicwonderland.com/ 2017/ 12/ 08/ pomona-the-courts-basic-fairness/ (over 90 colleges have lost due process challenges by respondent students since the 2011 Dear Colleague Letter).

 

[9]              September 2017 Q & A issued by the Department of Education, Office of Civil Rights: https://www2.ed.gov/about/offices/list/ocr/docs/qa-title-ix-201709.pdf (last accessed December 2, 2018).

 

[10]             Id.

 

[11]             On November 16, 2018, the Secretary of the U.S. Department of Education proposed amendments to regulations that implement Title IX of the Education Amendments of 1972 (Title IX).  The Secretary proposed an amendment to Part 106 of Title 34 of the Code of Federal Regulations, 34 C.F.R. Part 106.  See Proposed Rule by the Department of Education on Nondiscrimination on the Basis of Sex in Education Programs or Activities Receiving Federal Financial Assistance, 83 FR 61462, noting that Comment Period ends on January 28, 2019. https://www.federalregister.gov/documents/2018/11/29/2018-25314/nondiscrimination-on-the-basis-of-sex-in-education-programs-or-activities-receiving-federal (last accessed December 2, 2018)

On November 16, 2018, the Secretary of the U.S. Department of Education proposed amendments to regulations that implement Title IX of the Education Amendments of 1972 (Title IX).  The Secretary proposed an amendment to Part 106 of Title 34 of the Code of Federal Regulations, 34 C.F.R. Part 106.  See Proposed Rule by the Department of Education on Nondiscrimination on the Basis of Sex in Education Programs or Activities Receiving Federal Financial Assistance, 83 FR 61462, noting that Comment Period ends on January 28, 2019. https://www.federalregister.gov/documents/2018/11/29/2018-25314/nondiscrimination-on-the-basis-of-sex-in-education-programs-or-activities-receiving-federal (last accessed December 2, 2018)

 

[12]             See e.g. 18 Pa.C.S. § 2801 et seq. (Antihazing) and 18 Pa.C.S. § 6310.1 (Selling or furnishing liquor or malt or brewed beverages to minors).

 

[13]             See Proposed Rule by the Department of Education on Nondiscrimination on the Basis of Sex in Education Programs or Activities Receiving Federal Financial Assistance (“Proposed Rule”), 83 FR 61462, noting that Comment Period ends on January 28, 2019. https://www.federalregister.gov/documents/2018/11/29/2018-25314/nondiscrimination-on-the-basis-of-sex-in-education-programs-or-activities-receiving-federal (last accessed December 2, 2018).

 

[14]             The Department of Education summarized the major provisions of its proposed regulatory action with regard to sexual harassment as (1) defining the conduct constituting sexual harassment for Title IX purposes; (2) specifying the conditions that activate a recipient’s obligation to respond to allegations of sexual harassment and impose a general standard for the sufficiency of a recipient’s response; (3) specifying the situations that require a recipient to initiate its grievance procedures; and (4) establishing procedural safeguards that must be incorporated into a recipient’s grievance procedures to ensure a fair and reliable factual determination when a recipient investigates and adjudicates a sexual harassment complaint. The Department’s proposed regulations also (5) clarify that in responding to any claim of sex discrimination under Title IX, recipients are not required to deprive an individual of rights that would be otherwise guaranteed under the U.S. Constitution, and (6) prohibit the Department’s Office for Civil Rights (OCR) from requiring a recipient to pay money damages as a remedy for a violation of any Title IX regulation. https://www.federalregister.gov/documents/2018/11/29/2018-25314/nondiscrimination-on-the-basis-of-sex-in-education-programs-or-activities-receiving-federal

 

[15]             See Proposed Rule, supra; see also Doe v. Baum, 903 F. 3d 575, 581 (6th Cir. 2018) (stating that “[n]ot only does cross-examination allow the accused to identify inconsistencies in the other side’s story, but it also gives the fact-finder an opportunity to assess a witness’s demeanor and determine who can be trusted. So if a university is faced with competing narratives about potential misconduct, the administration must facilitate some form of cross-examination in order to satisfy due process.”), citing Doe v. Univ. of Cincinnati, 872 F.3d 393, 401-402 (6th Cir. 2017).

 

[16]             See Proposed Rule, supra.

 

[17]             See Proposed Rule, supra.

 

[18]             Federal Rule of Evidence 412 (Sex-Offense Cases: The Victim’s Sexual Behavior or Predisposition) governs the admission of evidence in a civil or criminal proceeding involving alleged sexual misconduct.

 

[19]             See Proposed Rule, supra.

 

[20]             This is in contrast to the prior guidance that urged schools to complete an examination within 60 days and not to delay their proceedings pending the investigation or outcome of a criminal matter. 

 

[21]             See Proposed Rule, supra. 

 

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