Channels, Fall 2016

Channels • 2016 • Volume 1 • Number 1 Page 167 Federal courts have produced mixed results regarding these basic procedural safeguards. Some courts have extended Dixon to include that college systems need to inform students of charges against them, advise students of the nature of the evidence supporting charges, afford students the opportunity to be heard in their defense, and sanction students based only on substantial evidence. 14 Some courts have held that due process requires the accused to be allowed representation by counsel, whereas other courts have found that this right is not absolute because it could lead to burdensome costs for the university. 15 Courts are also split on whether or not the accused should have a guaranteed right to discovery of evidence or whether or not he or she should be able to cross-examine witnesses. 16 Courts even differ as to whether or not hearing committee members need to recuse themselves if they are familiar with the accused or complainant and have a conflict of interest. 17 The only sure procedural due process rights include a notice and a hearing for the accused. In a typical sexual assault hearing, the university will first send notice of the charge to the accused and ask him or her to respond. The accused and complainant will then appear before a panel akin to a jury, which is typically comprised of students, faculty, and staff. In numerous examples of campus hearings, defendants did not get access to discovery, relevant evidence, or attorney representation. Often, they are even prohibited from cross- examine their accuser. According to the DCL, the accused cannot introduce evidence to which he or she was not granted access. 18 Only the complainant is informed of his or her legal rights. The hearing process is skewed unfairly towards the complainant. On March 1, 2016, a 21-year-old male turned to the courts after the University of Texas- Austin punished him for the unproven accusation that he sexually assaulted a woman in a drunken off-campus encounter. 19 He claimed that the school violated his Constitutional right to due process, primarily because the university’s policy barred the accused from having legal representation, cross examining his accuser, or even calling testimony from corroborating witnesses. To make matters worse, the victim never filed a police report or even complained directly to the school about the incident; instead, the school decided to take action based on her father’s complaint. The male is now facing a disciplinary hearing that could result in his expulsion. A false accusation can devastate the life of the student, often preventing them from transferring to another school or attending graduate school, damaging their reputation, 14 See Dixon, 294 15 Osteen v. Henley , 13 F. 3d 221 (7 th Cir. 1993) 16 Winnick v. Manning , 460 R. 2d 545, 549 (2nd Cir. 1972) (a college student's right to cross examine witnesses is not an essential due process requirement), Dillon v. Pulaski County Special School District , 468 F Supp. 54 (8 th Cir. 2009) (due process "demanded" the opportunity for cross-examination where witness testimony was essential to the committee's findings) 17 See Gorman, 837 18 See “Dear Colleague”, 11 (including information regarding the complainant’s sexual history) 19 DeMarche, E. (2016). Texas college student sues over possible expulsion for alleged sex assault. Fox News. Retrieved from http://www.foxnews.com/us/2016/03/01/texas-college-student-sues-over-possible- expulsion-for-alleged-sex-assault.html