Channels, Fall 2016

Kirkpatrick • Campus Sexual Misconduct Due Process Protections Page 164 the chairperson questioned Jane Doe in a calm and supportive manner. John Doe was not allowed to obtain legal counsel. He was expelled from the university two days after the hearing. 2 In many ways, this trial and others like it showcase how men and women are judged differently in situations involving sex and alcohol consumption together. While both the male and female parties are violating the law and possibly weakening their ability to communicate or read intentions when under the influence of alcohol, it is rarely considered that the female students bear a level of responsibility as well. Even though most of these cases involve the voluntary consumption of alcohol, the accused male may not use it as a defense whereas the female complainant can escape scrutiny from it. It is imperative that a university both empower victims of sexual violence to seek justice and preserve a safe educational environment for them, but the accused students in campus disciplinary processes for sexual misconduct must still be afforded adequate due process rights. To adequately provide the accused due process rights while still fulfilling their Title IX obligations, universities must cease holding their own sexual assault hearings. Instead, they need to direct all complainants to the local police who will handle these criminal manners fairly. Intersection of Title IX and Due Process Most known for promoting women’s sports, Title IX of the Civil Rights Act (hereinafter Title IX ) in fact bans all forms of gender-based discrimination on campus. Title IX states that “no person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance”. 3 While Title IX was not originally designed to resolve claims of sexual violence on college campuses, arguments began to form in the late 1990s that sexual harassment is actually a type of sexual discrimination. The Supreme Court then expanded Title IX’s right of action to allow suits for monetary damages in sexual harassment cases. 4 Title IX defines sexual harassment as “unwelcome conduct of a sexual nature” as long as the behavior is serious enough to impact the victim’s access to educational opportunities by creating a hostile environment. 5 Under Title IX, schools are required to conduct a “prompt, thorough, and impartial” investigation into any allegation of sexual assault reported on campus. 6 If an institution fails to adhere, it is evidence of sexual discrimination, and the institution is subject to both federal and civil penalties. When schools find that someone has committed sexual harassment, then under Title IX 2 Id, see 12 (“he was denied the advice of a trained lawyer or a competent advisor, and he was not counseled on how to, or in any way in a position to, completely defend himself”) 3 20 U.S.C. § 1681 (2012) 4 Franklin v. Gwinnett Cnty. Pub. Sch ., 503 U.S. 60, 76 (1992) (holding a damages remedy is now available for actions brought to enforce Title IX) 5 U.S. Department of Education Office for Civil Rights, Revised sexual harassment guidance: harassment of students by school employees, other students, or third parties 2 (2001), available at http://www2.ed.gov/about/offices/list/ocr/docs/shguide.pdf 6 Id.