Channels, Fall 2016

Kirkpatrick • Campus Sexual Misconduct Due Process Protections Page 166 One of the most significant components of the DCL is the federal mandate to use a preponderance of the evidence standard (50.01% certainty) to resolve sexual assault accusations. Prior to this DCL, OCR had not specified a particular standard of proof in disciplinary proceedings regarding sexual assault. However, according to the letter, in order for a school’s disciplinary procedures to comply with Title IX, they must apply the preponderance of the evidence standard in hearings for sexual assault. 11 If a school were to use a higher burden of proof, such as a clear and convincing evidence standard, the school would be in violation of Title IX. To justify its insistence on this standard, the Department of Education drew an analogy to civil actions in court, which use this same standard; both parties have important but nonetheless equal interests in the outcome. This is a bad analogy, however, because a college expelling a student for sexual assault has much graver consequences for the student than the university. Such an expulsion would haunt the student for likely the rest his or her life and destroy many career prospects. This mandate alone constitutes a noteworthy erosion of the due process protections afforded students accused of serious misconduct. While it seems intuitive that Title IX would give equivalent rights to both the complainants and the accused students if they were mistreated (wrongful acquittals and wrongful convictions can both be indicative of some form of sexual discrimination), universities do not have equivalent liability concerns from both the accused and the complainant. They are therefore not motivated to treat them equally. Although a school’s deliberate indifference to a sexual harassment complaint is immediately considered sex discrimination and actionable under Title IX, an equivalent indifference to the accused’s innocence is not immediately actionable. In a 1996 ruling, the Fifth Circuit held that accused student rights under Title IX fall under a nearly impossible-to-meet threshold: the accused must prove the school made the wrongful accusation as part of a broader pattern of systematic bias. 12 This standard forces the accused to now analyze each disciplinary case a school has adjudicated in order to prove that his or her result was part of a broader pattern of bias. Typical Hearing Process On most campuses, the hearing process for claims of sexual assault follows the same procedures as for any other claim of misconduct. The same system that governs alleged violations of university codes of conduct, such as the plagiarism of a term paper or the theft of a roommate’s belongings, also governs claims of sexual misconduct. Many of these systems operate like courts, using a panel of decision makers who hear and weigh evidence, determine the facts, and decide sanctions. A notice and the opportunity to be heard are the basic requirements that are mandated by courts reviewing the procedural due process rights of students in such hearings. 13 11 Id , 10-11. 12 Rowinsky v. Bryan Indep. Sch. Dist ., 80 F.3d 1006, 1015 (5th Cir. 1996) ( Rowinsky ’s standard also states that a school that is equally indifferent to rights of male and female complainants cannot be said to be violating Title IX) 13 Gorman v. University of Rhode Island , 837 F.2d 7, 16 (1 st Cir. 1988) (the court went on to state that whether or not a specific hearing is ideal, as long as it affords these two due process rights then it is fair)