Channels, Fall 2016

Channels • 2016 • Volume 1 • Number 1 Page 169 The constitutional guarantee of fair proceedings is located in the Fifth and Fourteenth Amendments to the Constitution, applying not only to court proceedings but to the public campus as well. The Supreme Court has ruled that students do not “shed their constitutional rights” at the “schoolhouse gate” 23 ; rather, students are afforded due process rights before they are suspended or expelled. In Matthews v. Eldridge , the Supreme Court instructed lower courts to weigh three factors when determining the proper scope of due- process rights in a particular situation. 24 First, accused students have liberty interests to protect their good names against false accusations. Some of the more extreme cases, such as the Duke lacrosse scandal, highlight how college sexual-assault proceedings can be picked up by the media and have far-reaching publicity. 25 Second, hearings must provide as much evidentiary process as possible so that the deciding panel avoids the risk of making erroneous decisions. When such cases fall into the area of disputed facts, oral evidence and cross-examination are extremely important to avoid the risk of erroneously depriving liberty. Finally, the courts must weigh the cost that increased processes impose on the system. While a full trial-like process would obviously impose tangible costs on an institution, there are mitigating factors. The courts’ application of the Matthews balancing test was meant to ensure that schools use fundamentally fair procedures that allow students the opportunity to respond to charges against them but without imposing highly technical or costly procedures on schools. 26 Others Speak Out In response to the 2011 ORC letter, colleges across the United States have strengthened their commitment to investigate alleged sexual assaults and have even changed the standard of proof required for sanctions. Universities are now scrambling to replace their sexual misconduct policies to further crack down on sexual assault cases. They also are hiring new administrative staff to address the legislation. In May of 2014, the OCR published a list of colleges under investigation for their handling of sexual violence cases. 27 Harvard Law School was one of the universities named, and the administration rushed to change their standards and procedures. In October of 2014, twenty-eight current and retired Harvard Law professors asked the university to abandon its new sexual misconduct policy and instead craft different guidelines for investigating allegations. They voiced their concerns in an open letter published in the Boston Globe , which condemned these new 23 Tinker v. Des Moines Indep. Cmty. Sch. Dist ., 393 U.S. 503, 506 (1969) 24 Mathews v. Eldridge , 424 U.S. 319 (1976) 25 Block, J. (2016, March 11). 10 years later, the duke lacrosse rape case still stings. The Huffington Post. Retrieved from http://www.huffingtonpost.com/entry/duke-lacrosse-rape-espn-30-for- 30_us_56e07e33e4b065e2e3d486f7 (a case where three Duke lacrosse players were accused of raping a female they had hired for entertainment in 2006 inflamed race, gender, and class divisions nationally- the men were eventually exonerated and ESPN Films’ 30-for-30 series revisited the entire story in March of 2016) 26 See Gorman, 837 (applying the Matthews test to a public university's disciplinary proceedings to determine the procedures required to satisfy the accused student's due process rights) 27 Press Release, U.S. DEP’T OF EDUC ., U.S. Department of Education Releases List of Higher Education Institutions with Open Title IX Sexual Violence Investigations (May 1, 2014). Retrieved from http://www.ed.gov/news/press-releases/us-department-education-releases-list-higher- educationinstitutions-open-title-ix-sexual-violence-investigations