Channels, Fall 2016

Kirkpatrick • Campus Sexual Misconduct Due Process Protections Page 172 systems where they have little to no oversight, or they conduct their own investigation while the criminal justice system does independent work. College hearing panels often use the same Title IX coordinator as investigator, prosecutor, defender, jury, and judge. 34 In addition, the panels are made up of university employees who most likely have an innate interest in the claims. Colleges have a very strong incentive to convict the accused, as acquitting the accused student carries with it the threat of OCR costing colleges over half a billion dollars in federal funding. Unfortunately, a presumption of impartiality favors the university, and the burden relies on the accused to demonstrate such bias. 35 For example, past rulings have found that even if a member of the disciplinary body observed the conduct in question, it does not render this member impartial. 36 The level of partiality required in these hearings is not the absolute neutrality that is required in the criminal justice system. Courts, on the other hand, do not suffer from the same problem that universities do in enacting bias. The justice systems mitigate the impact of biases by diffusing power and responsibility among a number of people, including legislators, judges, jurors, and officers. In contrast, a university administrator can frequently fill each of these roles so that the separate functions no longer check each other. The justice systems also already mitigate the risk of undeserved punishments through safeguards already in place. No individual courtroom can establish its own rules of evidence, while colleges are not even required to have rules of evidence at all. Colleges can tailor their proceedings to the facts of each case, whereas the courts have such procedures already set permanently in place. As such, courts should be the only venue for handling cases of sexual misconduct on university campuses. To accomplish their legal and ethical obligations under Title IX, colleges should instead focus on responsibilities they are capable of meeting regarding sexual assault: leading preventive education, providing counseling for alleged victims, and offering academic and housing accommodations to keep students safe while the justice system handles the case. Colleges could speedily link student complainants to medical resources and law enforcement once aware of sexual assault claims, and they should continue to help them acquire and use the resources they need to navigate the system. These are responsibilities that colleges can effectively fulfill. The colleges could even extend these services on a temporary basis while the criminal case is being tried in court and remove them if the accusation comes back uncorroborated. Given how weak the current system is, this reform would seem to make perfect sense. Tennessee has already implemented legislation that recognizes this same idea of a university’s limited competence in handling criminal manners. This law, called “Robbie’s Law,” requires universities to call in local police as soon as a homicide or rape has been 34 Smith v. Denton , 895 S.W.2d 550, 555 (Ark. 1995) (“Throughout the proceedings, Dr. Smith acted in a variety of often-conflicting capacities. He was at once investigator, prosecutor, witness, and judge”) 35 S ee Gorman, 837 36 Nash v. Auburn University , 812 F.2d 655, 665 (11 th Cir. 1987)