Ensuring Title IX fairness for the accuser and the accused

A recent ruling provide guidance for campus sexual assault investigations

As this issue was going to press, Education Secretary Betsy DeVos announced intentions to reverse Obama-era guidelines on handling sexual assault cases at colleges and universities. Until such time as the guidelines are clarified, institutions should continue following established practices.

A recent decision by U.S. District Court Judge Philip Simon granted a preliminary injunction in favor of a male University of Notre Dame student. The ruling overturned, in-part, the school’s disciplinary action against the student after a Title IX investigation.

Specifically, Simon overturned the school’s penalty of immediate expulsion of the student—just weeks prior to his final exams and graduation—and ordered that the student be allowed to sit for his final exams.

But a preliminary injunction does not end disciplinary action, so other aspects of the school’s punishment remained in place pending the outcome of litigation.

However, Simon was critical of the process Notre Dame used throughout the investigation. Simon’s order highlights the dilemma institutions face when they seek to provide both a fundamentally fair Title IX process to the students involved and comply with the Department of Education’s Office for Civil Rights (OCR).

His critiques of Notre Dame offer some practical guidance and basic practices that can promote fairness to students without running afoul of the OCR.

The Dear Colleague letter of 2011

In 2011, the OCR issued a “Dear Colleague” letter on the subject of campus sexual assault and on how, under Title IX, colleges and universities are expected to handle such claims.

High-profile lawsuits, OCR investigations and new congressional legislative interest have all conspired to mean that colleges and universities ignore the Dear Colleague situation to their peril. Unlike the disciplinary process for a cheating scandal, the resolution of a sexual assault case is a classic “parallel-proceedings” scenario.

At any moment there may be an administrative proceeding (by the university), as well as a criminal investigation (by external law enforcement) and potential civil lawsuits by either the accuser or the respondent. In the university disciplinary context, parallel proceedings raise at least two often troubling—and sometimes disastrous—special issues:

1. Sex, alcohol and credibility.

Campus sexual misconduct investigations often arise from dating and social relationships. Allegations arising from such relationships are among the most difficult to prove, as they often hinge on credibility of the accuser and the accused.

When alcohol and other recreational substances are involved, credibility assessments can only be made through detailed inquiries that make use of all available evidence, including unbiased interviews of both parties.

Getting the right answer in such investigations is difficult. For this reason, the conclusion of every investigation results in an aggrieved party and the potential for legal action against the investigation and the outcome, or both.

These factors create compelling incentives for institutions to implement robust processes that promote the safety and serenity of the accuser, but also afford the accused the opportunity to challenge the accuser’s version of events and any other witnesses or evidence used in the investigation.

2. Title IX, due process and crime.

OCR’s Dear Colleague guidance promotes practices and procedures that directly contradict the basic notions of fairness and due process that exist in almost any other type of investigation. This is especially problematic in Title IX investigations, because the alleged conduct almost always overlaps with a criminal statute.

As such, a lawyer representing the accused must assert basic constitutional protections, including the Fifth Amendment right to remain silent.

A fair process, of course, requires a deliberate proceeding that does not maximize speed and efficiency. Though OCR gives lip service to due-process protections, its guidance states unequivocally that due process should give way to expeditious resolution of a complaint.

A real-world fix would be to delay the civil proceedings pending resolution of the criminal investigation and potential prosecution.

Taking the OCR letter at face value, however, a Title IX-compliant university will not delay much of anything. Although a short pause in the disciplinary proceedings is clearly permissible for law enforcement to conduct basic investigative tasks, the lengthy delays we often see in the external world are unlikely.

Similarly, OCR guidance allows for attorneys to participate for all parties, but encourages schools to limit participation. Though stated only in reference to direct questioning by the parties, the Dear Colleague letter raises the concern that cross-examination of a complainant “may be traumatic or intimidating, thereby possibly escalating or perpetuating a hostile environment.”

Choosing the evidentiary standard

Finally, the Dear Colleague letter mandates that institutions use a “preponderance of the evidence” standard—the lowest standard applicable—to prove the accuser’s allegations.

The problem is this: A student can be found by the institution to have committed a sex crime at a hearing that resulted from an investigative process in which basic principles of fairness were either entirely absent or markedly limited.

Fairness and OCR oversight Judge Simon’s Notre Dame ruling offers some practical guidance to providing a fair process to the accused, without deviating from OCR’s guidance.

– Gather all relevant information. Simon believed Notre Dame’s critical failure was that its investigation and discipline decision were based primarily on a group of text messages selectively provided by the accuser, and the school never reviewed, or even asked for, all text messages between the two students. The remaining texts, which came to light later, substantially contradicted the allegations and Notre Dame’s findings, and called into question the discipline of the respondent.

– Provide the accused with sufficient access to evidence. Simon was particularly critical of the fact that the accused was not provided with sufficient access to the investigative file before the hearing. The accused had only days to review hundreds of pages of documents before the hearing.

– Provide meaningful participation in hearings. This is the area of greatest tension between OCR and Judge Simon. As noted, the tenor of the Dear Colleague letter encourages institutions to limit cross-examination of an accuser, but the judge felt Notre Dame’s policy—which allowed the accused only to submit written questions and prevented any type of communication between the accused and an adviser during the hearing—substantially negated the accused’s ability to participate meaningfully. Simon also noted that the hearing applied its evidentiary standards unequally to the accused and the accuser.

– Provide the opportunity to consider new evidence post-hearing. Notre Dame afforded an appeal process to the accused. However, the university’s process did not allow consideration of additional evidence. In this case, that evidence was the balance of the text messages that directly contradicted the evidence the school relied on.

Simon was critical of the school’s failure to consider the text messages in general, and seemed particularly troubled that the school failed to reconsider its decision once those came to light. Colleges and universities have been encouraged by OCR policy statements to limit procedural protections for accusers in Title IX investigations.

However, such protections are embedded in our nation’s legal traditions. To provide a fair process to all parties, and to comply with the law and avoid litigation, institutions must make sure that their effort to comply with OCR’s guidance does not discard basic procedural protections during the course of investigations.

Jack Sharman and Brandon K. Essig are partners in the white collar criminal defense and corporate investigations practice at the law firm Lightfoot, Franklin & White LLC. Clint Speegle is an associate in the firm’s NCAA compliance practice.


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