One of the most contentious issues in higher education continues to be how to punish and deter student-to-student sexual assault, protect students and assault survivors, and at the same time fully honor the legal rights of all concerned. Title IX of the Education Amendments of 1972 prohibits institutions of higher education from discriminating “on the basis of sex.” The federal Department of Education, Office for Civil Rights (“OCR”) has in recent years aggressively applied this law to combat sexual assault, opening a record number of investigations of colleges and universities and issuing extensive guidance on OCR’s expectations of what institutions need to do to bring their disciplinary procedures into compliance with Title IX.
Colleges and universities face a different but related responsibility in the same context – the need to afford constitutional due process to those accused of sexual assault. Expelling or suspending a student without affording such due process can result in liability for a civil rights violation, which in turn can render administrators liable for damages and attorneys’ fees. A due process violation can also help pave the way for a Court to impose injunctive relief to prevent future violations.
This blog entry will describe five prominent cases, either recently decided or expected in the next 12 months that contain – or will contain – critical guidance to public and private institutions of higher education.
But before that description, this short discussion introduces some general concepts for those not familiar with this area of the law.
The Ground Rules
First, the basic test for student due process comes from a 1975 U.S. Supreme Court case, Goss v. Lopez, which involved discipline in the context of student unrest. In Goss, the Supreme Court held that student due process had two over-arching requirements – in the words of the Court, “some kind of notice” and “some kind of hearing.” “Hearing” corresponds to “some kind of meaningful opportunity to be heard.” The Supreme Court did not hold that a full evidentiary hearing was required to impose discipline on a student, i.e., sworn testimony, right to cross-examination, right to introduce witnesses, etc. Indeed, the Supreme Court described in another much-cited due process case, Matthews v. Eldridge, that due process is a “flexible concept,” and that the process due depends in substantial part on the severity of the penalty imposed.
Second, constitutional standards like due process bind government entities such as state universities and community colleges. They do not, however, apply to private colleges and universities. Nonetheless, private institutions must abide by common law rules of fairness (some codified by statute), and these incorporate or parallel due process rights. Courts can apply the standards interchangeably, and thus public and private institutions must take account of precedent in both areas.
Third, as a matter of practice, institutions are beginning to implement different types of models for student discipline in sexual misconduct cases – the “hearing model” and the “investigator model.” The hearing model has been regarded as a traditional approach. This consists of an investigation, often by an independent firm that the institution hires, followed by a hearing with many of the same components as an administrative hearing – one or more neutral decision-makers, sworn testimony, cross-examination of witnesses (with appropriate safeguards for cross-examination of alleged victims), and detailed findings.
Increasingly, however, institutions, both public and private, are adopting the “investigator model,” in which no formal evidentiary hearing takes place. Instead, the student facing discipline (often called the “respondent” in due process litigation) receives traditional notice of the charges against him or her, and then a comprehensive investigation takes place, conducted sometimes by a single person and often by an independent firm. This investigation provides the respondent with a meaningful opportunity to be heard in a thorough interview by the investigator. The respondent may also provide documents, names of witnesses, and other information.
The New Cases
- Requirement of the Hearing Model – John Doe v. Regents of the University of California (U.C. San Diego)
Note: It is general practice in litigation to protect the accused student’s identity by referencing them as “John Doe” in the case caption and pleadings, and often the alleged victim is referenced as “Jane Roe.”
This important case is on appeal and will help determine the due process requirements of the “hearing model,” the first of the two described above. In this case, which gained media attention, the accused student faced charges of nonconsensual sexual contact in the course of a dating relationship. The university conducted a hearing, and the student was found responsible. The student challenged his discipline in state trial court, however, and the trial court found in July 2015 that the university had infringed the accused student’s due process and other rights in the course of his administrative hearing.
This trial court decision is not precedential, meaning it does not represent the law of California. Instead, it is only one court’s interpretation of the law. It is important, however, because the trial court’s findings will be those considered by the Court of Appeal, which will likely set binding precedent on those particular points.
The trial court’s findings included these. First, the court found fault in the university’s screening cross-examination questions posed to the alleged victim and declining to ask her a number of questions proposed by the respondent relating to his communications with her. Second, the trial court found it improper for the University to have placed a partition that blocked respondent from seeing the alleged victim as she testified, so that there was no ability for respondent to confront this witness against him. Third, the trial court pointed out that respondent was not provided the alleged victim’s statement or other witness statements before the hearing in order to help him formulate a defense.
The university has argued to the Court of Appeal that under well-established law, due process does not require a full judicial hearing with right to cross-examine witnesses in order for the university to discipline a student. Accordingly, the trial court erred in finding due process principles had been violated.
The case was argued and submitted in the Court of Appeal on October 12, 2016, and a decision is expected in the next several months.
- Requirements of the Investigator Model – John Doe v. University of Southern California
Earlier this year on April 5, 2016, the Court of Appeal in John Doe v. University of Southern California, issued a published decision setting legal precedent in this area. The Court did not consider whether the investigator model per se satisfied constitutional due process; indeed since the University of Southern California (“USC”) is a private institution, the Court did not need to do so. But the Court did decide the case under principles of common law fairness using due process concepts. The Court never indicated the investigator model itself failed to satisfy fairness standards, and in fact acknowledged that due process does not always require a “full dress evidentiary hearing.”
Instead, the Court of Appeal found flaws in the way the university implemented its investigator model. First, the Court found that the university violated notice standards by only citing student code sections to the accused student at the outset of the investigation, without describing the facts underlying the charges. The Court also found that the university improperly changed the theory of the case after the initial findings and during the internal university appeal process.
The facts of the case concern a group sexual encounter at a fraternity party in which respondent and the alleged victim, referred to as Jane Roe, engaged in allegedly non-consensual sex and in which Roe also engaged in sex with others at the party after respondent had left the room. The university’s investigation and report focused on alleged sexual assault by respondent and whether Roe consented to sexual contact with him. But when the case was appealed internally, the appeals panel determined that discipline was appropriate on a different theory, in particular that Doe had encouraged other students during the group encounter to slap Roe’s buttocks and endangered Roe by leaving her in a room with other men. The Court of Appeal observed that because the theory of the case during the investigation was different in this way, John Doe was not provided an adequate opportunity to defend his actions relating to the slaps or leaving the room. In light of this, the Court of Appeal found he was deprived of adequate notice.
The Court of Appeal also found that the university violated principles of fairness by not providing John Doe with the evidence against him as part of the process. The fact that John Doe would have been given the information had he asked was insufficient.
The university petitioned the California Supreme Court for review, but review was denied. Accordingly, the case now constitutes binding legal precedent for the propositions that institutions using the investigator model must provide adequate notice of the factual bases at the outset of the investigation; that they may not substantially alter theories of responsibility late in the disciplinary process; and that the accused student should, as part of the investigation, be provided access to the evidence against them.
- More on the Investigator Model Expected — John Doe v. University of Southern California
In 2017, the Court of Appeal will likely decide another case involving USC that will shed further light on the legal requirements of the investigator model, including the extent to which it is fair for investigators effectively to serve as decision makers. In this case, on February 8, 2016, USC won outright in the trial court. The university had expelled a student based on a finding he had engaged in sex with a student who was intoxicated and unable to consent. The trial judge rejected the respondent student’s administrative challenge to his expulsion, and issued a well-reasoned, 15-page decision sustaining the discipline and upholding the university’s investigator model system.
In doing so, the Court rejected a number of challenges the student had made to the system, including a challenge that the investigator in the case should not have also served as the effective decision maker. The trial court’s order found the use of the single investigator complied with common law principles of fairness, and notions of due process. The court explained that without some showing of impermissible bias, “there is nothing per se improper in [the investigator’s] role as both an investigator and adjudicator. Essentially, [the investigator] was both a factfinder who operated on her own initiative and also accepted the party’s submission. Contrary to Petitioner’s assertion, no evidence in the record suggests [she] was acting as a prosecutor when she investigated the matter.”
The expelled student has appealed the trial court’s decision. Unless the case is otherwise resolved, it could well result in additional published guidance in California on elements of fairness and due process.
- Gender Bias in Procedure? — John Doe v. Columbia University
Another recent case, decided July 29, 2016, has approached an alleged lack of due process from a different angle – from the perspective of Title IX itself, and its prohibition on discrimination “on the basis of sex.” The U.S. Court of Appeals for the Second Circuit, covering New York and other Eastern states, considered the federal lawsuit brought by a male student who conducted the university’s hearing model, as implemented by the university, discriminated against him as a man, and thereby violated Title IX. Plaintiff alleged in his lawsuit that, following an investigation and then a formal hearing, the university had suspended him, after the hearing panel found that he had “directed unreasonable pressure for sexual activity toward the Complainant over a period of weeks” and that “this pressure constituted coercion [so that] the sexual intercourse was without consent.”
The federal district court dismissed plaintiff’s complaint, but the Court of Appeals reversed the decision, finding that the student had set forth facts that could make out a case for sex discrimination. The Court of Appeals relied on the following alleged facts: (1) the investigator and the panel had declined to seek out potential witnesses whom Plaintiff had identified as sources of information favorable to him; (2) “[t]he investigator and the panel failed to act in accordance with University procedures designed to protect accused students” (the Court’s discussion does not specifically identify the flaws), and (3) according to the complaint allegations “[t]he investigator, the panel, and the reviewing Dean . . . reached conclusions that were incorrect and contrary to the weight of the evidence.” Finally, significantly, the Court pointed to complaint allegations detailing publicity surrounding the university’s previous responses to sexual assault against female students, and the pressure this put on the university, and stated that those allegations further supported the claim of anti-male bias.
The Court of Appeals decision does not mean that the university is liable, but instead only that the trial court was wrong in dismissing the complaint at the outset. The university will still have an opportunity to defend itself through pre-trial motions and if necessary by evidence at trial. The case, however, highlights the need to ensure that processes have fairness protections that guard against accusations of gender-bias.
- The OCR Weighs In on Due Process (Through the Lens of Title IX) — Wesley College Investigation
Finally, the Department of Education, OCR, itself has now weighed in on due process. Normally, the OCR has focused on system-wide protections for victims and potential victims, and not the rights of accused students. But in the Wesley College matter, the OCR regional office in October 2016, determined that the small Delaware college had in fact violated Title IX by not affording an accused male student certain procedural protections. The Wesley matter concerned the college’s expulsion of a male student for allegedly live-streaming a female student’s sexual encounter without her knowledge. The expulsion took place seven days after discovery of the conduct, shortly before graduation.
The OCR found that the college’s process was flawed, first, because there was no investigatory interview of the accused student in question, even though college policies provided that all parties and witnesses in this type of case would be interviewed. The OCR also found it was improper for the college not to provide the accused student the incident report, the findings of the college’s investigation, or other evidence against him. The OCR further observed that the accused student was not made aware of a particular witness’s testimony during the hearing or provided the opportunity to question the witness. Wesley has entered into a Resolution Agreement with OCR to address these issues.
* * * * *
We will report on important developments in this area, through blog entries or special bulletins, as they occur.