This blog was authored by Alysha Stein-Manes.

The manner in which institutions of higher education must address sexual assault in the educational context continues to evolve as both the federal government and courts weigh in on what procedures public and private colleges and universities must follow in order to comply with both Title IX of the Educational Amendments of 1972 and due process requirements under state and federal laws. Title IX of the Education Amendments Act of 1972 is a federal civil rights law that requires educational institutions to maintain policies, practices, and programs that do not discriminate against anyone “on the basis of sex.”  Title IX applies to all educational institutions, both public and private, that receive federal funds. Title IX and its implementing regulations set out certain requirements regarding investigations and hearing procedures. State laws governing the due process rights of individuals are likewise applicable to discipline in the public educational context.

Last year, we reported that the Office for Civil Rights (OCR) at the United States Department of Education (DOE), which is charged with the responsibility to enforce Title IX and its implementing regulations, rolled back a series of Title IX enforcement guidelines issued by the Obama Administration. In rescinding prior guidance, OCR, under current Education Secretary Betsy DeVos, criticized prior guidance and also many institutions’ definitions of assault and harassment, and noted that certain policies may also infringe on the individuals’ free speech and due process rights.

Secretary DeVos announced that the DOE would launch a public comment period to inform the development of new federal regulations pertaining to campus sexual assault policies. While we had previously expected the DOE to release its proposed regulations for notice and comment in April 2018, it has yet to do so.

As institutions of higher education wait for additional guidance from the DOE, courts continue to weigh in on obligations conferred on public and private educational institutions in regard to the rights of both the complainant and accused.

This month, a California Court of Appeal published a significant decision, John Doe v. Claremont McKenna College, addressing student discipline arising from an allegation of sexual assault.

John Doe v. Claremont McKenna College

While a freshman at Claremont McKenna College, John Doe met Jane Roe, a freshman at a neighboring school. On the night of a party, John and Jane engaged in sexual activity that Jane later alleged was a sexual assault in violation of the College’s sexual misconduct policy.

Claremont McKenna College (the “College”) initiated an investigation and hired a third-party investigator. The investigator interviewed Jane, John, and multiple other witnesses and reviewed other evidence. In accordance with the College’s policies, the investigator provided the complainant and accused with a preliminary investigative report before finalizing the report.  In response, John submitted a “Written Request for Additional Investigation Steps.” Specifically, he requested the investigator ask additional questions to witnesses already interviewed, including him and Jane, and interview new witnesses, explaining why each new witness was relevant to the investigation. John also sought additional documentary evidence, including relevant medical reports. While Jane submitted a response to the preliminary report, she did not request further investigation steps. The investigator interviewed one new witness and clarified a point raised by one of the original witnesses, but did not grant any of John’s other requests. Importantly, the investigator did not ask Jane any of the questions John submitted to the investigator. The investigator provided the parties with a final investigative report, and the College closed the investigation.

Pursuant to the College’s policies, the College then convened an “Investigations Findings and Review” Committee meeting. The Committee was comprised of the investigator and two members of the College’s faculty and staff. The Committee’s task was to evaluate the evidence and decide by majority vote, using the “preponderance-of-evidence” standard, whether John had violated the College’s sexual misconduct policy.

College policy allowed, but did not require, the parties to appear at the Committee meeting and make an oral statement to the Committee. Prior to the Committee meeting, both John and Jane submitted written statements. The procedures did not provide for any questioning of witnesses by the Committee or the parties. Jane did not appear at the meeting. Following the meeting, the Committee issued a written decision finding that John violated the College’s sexual misconduct policy.

John appealed the decision under the College’s procedures, but the College denied his appeal. The College suspended John for one year and implemented additional sanctions against him. Following the College’s denial of John’s appeal, John filed a petition for writ of administrative mandate (“writ”) asking a trial court to set aside the College’s sanctions against him. John filed his writ petition under California Code of Civil Procedure Section 1094.5(b), arguing that the trial court should set aside the sanctions because it did not provide him with a “fair trial.” The trial court denied his request, finding that John received a fair hearing. Additionally, the trial court held that John had no right to cross-examine Jane, he had an opportunity to review and respond to the evidence the Committee considered, and he failed to show prejudice from the investigator’s decision not to grant his requests for additional investigative steps. John appealed to a California Court of Appeal.

On appeal, John argued, among other things, he was denied a fair hearing because neither he nor the Committee was able to ask any questions of Jane who did not appear at the Committee meeting, and therefore, the Committee had no basis for evaluating her credibility.

The Court of Appeal agreed that Jane’s failure to appear at the hearing, either in person or via videoconference or other means, deprived John of a fair hearing where John faced potentially serious consequences and the case against him turned on the Committee finding Jane credible.

In its analysis, the Court examined recent court decisions addressing an educational institution’s obligations to provide students due process in disciplinary matters, including two California Cases, Doe v. Regents of University of California and Doe v. University of Southern California. These two cases also addressed fair hearings under Section 1094.5. The Court also analyzed a recent decision by the Sixth Circuit Court of Appeal analyzing whether an accused’s due process rights were violated in a sexual misconduct case. In that case, the Sixth Circuit found that under due process principles, accused students must have the right to cross-examine adverse witnesses in the most serious of cases.

After analyzing these cases, the Court synthesized a “set of core principles” applicable to cases in which the accused student faces a “severe penalty” and the school’s determination turns on the complaining witness’s credibility. First, the accused student is entitled to “a process by which the respondent may question, if even indirectly, the complainant.” Second, the complaining witness must be before the finder of fact either physically or through videoconference or similar technology so the finder of fact can assess the complaining witness’s credibility in responding to its own questions or those proposed by the accused student.

Applying these principles to the facts of the present case, the Court found that Jane’s allegations against John were still crucial to the Committee’s determination of misconduct even if the Committee relied on other evidence to “corroborate” those allegations. Although the investigator, who was on the Committee, had the opportunity to evaluate the credibility of both parties, the other Committee members did not. The Court noted that it was important for each member of the committee to assess Jane’s demeanor in responding to questions generated by the Committee or, indirectly, by John.

Ultimately, the Court held that a school’s obligation in a case turning on the complaining witness’s credibility is to “provide a means for the [fact finder] to evaluate an alleged victim’s credibility, not for the accused to physically confront his accuser.” The Court noted that schools can use many methods to meet this obligation, including granting the fact finder discretion to exclude or rephrase questions from the responding witness as appropriate, asking its own questions, physically separating the witnesses, or having a witness appear remotely via appropriate technology. The Court of Appeal reversed the trial court’s decision and instructed the trial court to review John’s request to review the College’s decision.

Schools’ Obligations after Doe v. Claremont McKenna

Currently, many California colleges and universities use an “investigator model” for disciplinary proceedings, in which there is no formal hearing prior to imposition of discipline. The Court of Appeal’s decision in Doe v. Claremont McKenna may therefore require some revisions to school conduct policies that use the investigator model for hearings but do not generally allow for cross-examination of the complainant.

Schools should work with legal counsel to review and potentially update their policies and procedures in accordance with this new decision. In doing so, schools may want to consider not only updating their policies and procedures to include a “hearing” component, but also seeking to define what constitutes a “severe penalty” and provide guidance to fact finders for assessing the credibility of witnesses. When updating such policies and procedures, schools must consider their obligations under Title IX, as well as other federal and state laws governing fair hearings.