Channels, Fall 2016

Channels • 2016 • Volume 1 • Number 1 Page 165 administrators must end the behavior, prevent its recurrence, and remedy the effects on the victim. 7 The idea of due process is rooted in the United States Constitution. The phrase means “fairness” and is found in both the Fifth and Fourteenth Amendments to the Constitution. The clause requires that the federal and state governments provide citizens with substantive fairness and certain procedures before depriving them of life, liberty, or property interests. In higher education, a property right may encompass the right to pursue an education. According to Goss v. Lopez , before revoking such property rights, institutional administrators in higher education must afford such students adequate due process. 8 These procedures would in theory help to ensure student rights are not violated during the judicial process. Dixon v. Alabama State Board of Education found that students possess certain liberty rights in their education protected by the Fourteenth Amendment. Students could therefore only be expelled from state colleges after receiving some due process. 9 The Office of Civil Rights (OCR) is the federal agency charged with enforcing federal anti- discrimination statutes such as Title IX. The OCR has jurisdiction to ensure that every university accepting federal funding complies with these statues. In 2011, the OCR issued a Dear Colleague Letter (DCL) regarding campus rape, which laid out the minimum grievance procedures by which schools must comply for cases involving sexual violence. 10 The DCL mandated that schools provide notice to students of the procedures and outcomes, perform adequate and impartial investigation into complaints, develop an equitable process in which parties have an equal opportunity to speak and present evidence, and ensure that the proceedings are facilitated by individuals who receive annual training on sexual violence issues. Other than these broad guidelines, the OCR fails to specify how schools should carry out these mandates. As a result, some schools are conducting such disciplinary hearings differently than others. Out of the nineteen-page document, a mere two sentences address due process rights for the accused. The document even urges that steps to afford due process rights to the accused should not restrict or delay protections for the complainant. The document strongly discourages institutions from allowing the accused to cross-examine the complainant, once again escalating the complainant’s rights. In addition, this letter clearly pressures universities to crack down on sexual assault punishments by threatening to take away the universities’ federal funding if they fail to comply with the regulations. Overall, the document incentivizes universities to immediately find the accused guilty and utterly disregard the accused’s due process rights. 7 Id. 8 Goss v. Lopez , 419 U.S. 565, 579 (1975) (due process as defined by some kind of notice and hearing to be determined by appropriate accommodation for the competing interests involved) 9 Dixon v. Alabama State Board of Education , 294 F. 2d 150, 159 (5 th Cir. 1961) (“a hearing which gives the Board or the administrative authorities of the college an opportunity to hear both sides in considerable detail is best suited to protect the rights of all involved”) 10 “Dear Colleague” Letter from Russlynn Ali, Assistant Secretary for Civil Rights, U.S. Department of Education (Apr. 4, 2011), available at http://www2.ed.gov/about/offices/list/ocr/letters/colleague-201104.pdf