Student Rights & Title IX

Massachusetts Board of Higher Education Report on Campus Safety Pays Scant Attention to Due Process

Published on: June 29, 2016 | by Ruth O'Meara-Costello

The Massachusetts Board of Higher Education, the state agency responsible for guiding public colleges in Massachusetts, has recently waded into the thorny underbrush of law, morality, politics, and public relations that is the current state of discourse around sexual assault on campus. An existing 2014 Board Resolution declared “zero tolerance” for sexual violence on campus, and in 2016 the Board’s Commissioner established a Task Force on Campus Safety and Violence Prevention to make recommendations about campus safety in general and sexual assault in particular. The Board accepted the resulting report, “Securing Our Future: Best Practice Recommendations for Campus Safety and Violence Prevention,” at its June 14, 2016 meeting.

As attorneys whose role in campus proceedings is often to represent accused students, the question we ask when reviewing any new guidance is what implications it might have for the accuracy and fairness of fact-finding following accusations of sexual assault or harassment on campus. The sections of the report that deal with sexual assault are not groundbreaking, and will ring familiar to anyone who has already perused the reports of the White House Task Force to Protect Students from Sexual Assault and the extensive guidance that the federal Department of Education’s Office of Civil Rights has released on this issue. But disappointingly, to the extent that the report does give any guidance as to what procedures schools should follow, it appears to endorse practices that deprive students of constitutional rights and subject them to biased inquisitions without first giving them fair notice of the accusations against them.

Are Universities’ Views of Sexual Harassment on a Collision Course with the First Amendment?

Published on: April 8, 2016 | by Naomi Shatz

As explained in Jacob Gersen and Jeannie Suk’s forthcoming article, The Sex Bureaucracy, the U.S. Department of Education’s Office for Civil Rights (“OCR”) guidance documents about Title IX have shaped college and university sexual harassment and sexual assault policies by threatening the withdrawal of federal funding if the schools do not adopt OCR’s recommendations. OCR has defined sexual harassment as “unwelcome conduct of a sexual nature,” but made clear that under Title IX schools only have an obligation to address such harassment when it rises to the level of creating a hostile environment, which it defines as harassment that “is sufficiently serious that it interferes with or limits a student’s ability to participate in or benefit from the school’s program.” This definition of sexual harassment provides the floor below which school’s policies may not fall, but nothing in Title IX or OCR guidance prevents schools from adopting even more expansive definitions of sexual harassment or standards under which they will investigate allegations of such harassment.

Recently, OCR has emphasized that it expects colleges and universities to investigate claims of sexual harassment well before they reach the threshold at which Title IX requires the school to address the harassment, i.e. before the harassment creates a hostile environment. CONTINUE READING ›

So you’ve been accused of academic misconduct. Here’s what you need to know.

Published on: March 14, 2016 | by Naomi Shatz

If you or your child is accused of engaging in academic misconduct, you’ll get a crash course in how the college or university bureaucracy works to process these cases and sanction students. Before that happens, you should be aware of a few key points.

#1: Academic misconduct is a big category

In a previous post I explained how colleges define plagiarism, probably the most common form of academic misconduct. Colleges will sanction students for plagiarism if the student intentionally or accidentally copies, quotes without proper attribution, or incorporates language or ideas from some other person into their work. Colleges also deem it plagiarism if students work together on an assignment but do not list their co-collaborators on the work they turn in.

Research misconduct is another form of academic misconduct we frequently address. Research misconduct arises mostly in the hard sciences, and according to federal regulations is defined as “fabrication, falsification, or plagiarism in proposing, performing, or reviewing research, or in reporting research results.”

Courts Are Starting to Permit Title IX Lawsuits by Accused Students to Go Forward

Published on: February 26, 2016 | by David Russcol

As we have covered before on this blog, courts have generally been inhospitable to Title IX claims by students accused of sexual misconduct on campus, often dismissing them in the early stages before the students have a chance to obtain evidence through discovery. The most common theory for a Title IX violation is the “erroneous outcome” theory outlined in Yusuf v. Vassar College: to state a claim under this theory, a student disciplined for sexual misconduct must make some showing that the disciplinary process was unfair, combined with “particular circumstances suggesting that gender bias was a motivating factor behind the erroneous finding.”

Unfortunately for plaintiffs, evidence of this sort of gender bias is frequently hard to come by. Even when there is a “smoking gun” document or email, it is often locked away within the university until and unless a court orders it revealed. (The Washington & Lee case, where the Title IX officer had expressed on a public website her view that a woman is sexually assaulted when she has sex and then regrets it, is a rare exception.) The requirement that a plaintiff come forward with particulars at the very beginning of the case fits awkwardly with the standard by which claims are judged when the school, almost invariably, files a motion to dismiss. Since 2007, and especially after the Supreme Court’s 2009 decision in Ashcroft v. Iqbal, plaintiffs have had to make enough specific factual allegations at the beginning of a case to make their legal claims “plausible” in the eyes of the judge. I have discussed previously on the blog how this combination creates a Catch-22: an accused student usually cannot get access to critical evidence without discovery from the university, but the student’s lawsuit will get thrown out before discovery unless it identifies that evidence. Thus, by and large, the courthouse doors have been shut on this type of claim.

Pop Quiz: Do you know what constitutes plagiarism at your college?

Published on: February 3, 2016 | by Naomi Shatz

As far as we know, every college and university in the country has a student handbook or honor code that provides rules for how students must perform their work and the standards they are expected to meet. And as far as we know, at every college and university students are routinely disciplined for violating those rules in a number of ways – from the most minor of infractions to severe academic misconduct. Colleges and universities place a significant amount of responsibility on their students to independently learn the school’s policies, the forms of citation they should use in each discipline, and the rules applicable to each class they take. Before turning in work at college, there are a few things to know about academic misconduct policies.

First and foremost, students and their parents need to understand how their school defines academic misconduct, and particularly, plagiarism. The vast majority of students we represent in academic discipline proceedings are accused of plagiarism, and many of our clients who did not intend to violate any rules or copy anyone else’s work nonetheless find themselves disciplined for violating school policies. In our experience most schools define plagiarism incredibly broadly. For example, Harvard College’s policy states: “Whenever ideas or facts are derived from a student’s reading and research or from a student’s own writings, the sources must be indicated . . . The responsibility for learning the proper forms of citation lies with the individual student . . . Students who, for whatever reason, submit work either not their own or without clear attribution to its sources will be subject to disciplinary action, up to and including requirement to withdraw from the College.” Dartmouth College’s policy is similar: “Plagiarism is defined as the submission or presentation of work, in any form, that is not a student’s own, without acknowledgment of the source.” A few schools, however, define plagiarism more narrowly, as U. Mass. Amherst does: “knowingly representing the words or ideas of another as one’s own work without citation.”

An Update on the Law Concerning Campus Sexual Assault

Published on: January 19, 2016 | by David Russcol

Over a year ago, I published a blog post describing the unfair processes used by many schools to deal with complaints of sexual assault and harassment, and compared it to the criminal justice system. As I wrote then, the Department of Education (DOE) Office of Civil Rights (OCR) has placed enormous pressure on colleges and universities under Title IX to take swift and decisive action against students accused of sexual assault, even though the stacked procedures and low standard of proof make it likely that many innocent students are being punished (often, suspended or expelled), with substantial damage to their reputations and future careers.

What has changed since then? For the most part, not very much. A different bureau of DOE, separate from OCR, did issue some regulations following amendments to the Clery Act and the Violence Against Women Act. The most noticeable impact of the regulations is that now, in cases involving sexual assault (but not necessarily misconduct short of sexual assault), schools must allow students to bring an attorney or other advisor of their choice to hearings and meetings in the disciplinary process. That is unquestionably a step forward. However, the regulations still permit schools to prevent counsel from taking an active role, and the standard if not universal practice is for attorneys to be able to attend but not participate, other than whispering or passing notes to the student.

California Governor’s Veto of Bill Mandating Penalties for Campus Sexual Assault Allows Colleges to Exercise Discretion

Published on: October 15, 2015 | by Ruth O'Meara-Costello

A complex patchwork of federal laws, regulations, and both binding and non-binding “guidance” issued by federal agencies governs how colleges respond to allegations of sexual harassment or sexual assault on campus. Compliance with these laws is often a challenge for colleges, which have to respond to the federal government’s increasingly specific demands regarding the contents of their policies and conduct of adjudications in this area. From my perspective as a lawyer whose most frequent involvement in such campus proceedings is as an advocate for accused students and faculty, it often seems that the laws that govern in this area are becoming increasingly complex and yet no better able to deal effectively or appropriately with the complexity of real human relationships and interactions. I firmly share the goal of reducing sexual assault on college campuses and elsewhere, but believe that legislation should be carefully evaluated with an eye to its likely real-life consequences for students, whether complainants or respondents.

That is why, as states begin to legislate more frequently in this area, California Governor Jerry Brown’s veto of one proposed law was a refreshingly common sense choice. The bill would have required colleges to dole out at least a two year suspension to any student found responsible for a sexual assault of any kind. That requirement quickly prompts the question of how “sexual assault” is defined, and there the legislation provided little help, stating: “For purposes of this section, ‘sexual assault’ includes, but is not limited to, rape, forced sodomy, forced oral copulation, rape by a foreign object, sexual battery, or a threat of sexual assault involving a student, whether on or off campus.” That definition is incredibly poorly drafted; it is common sense that sexual assault would include the listed crimes, but by stating that it is “not limited to” those crimes, legislators left open the possibility that the definition could be wide enough to sweep up extensive conduct that most people would not consider so severe as to warrant a two year suspension from college, with its attendant loss of financial aid and removal from school housing.

How are Accused Students’ Lawsuits over Sexual Misconduct Discipline Faring?

Published on: August 21, 2015 | by Naomi Shatz

Much has been made about allegations of sexual assault on college campuses in recent years. At first the discussion centered on victim’s rights advocates’ claims that colleges swept allegations of sexual assault under the rug. Starting in 2001, and escalating in 2011, the U.S. Department of Education’s Office for Civil Rights (OCR) began issuing guidance dictating how federal funding recipients (i.e. virtually all colleges and universities) should handle sexual assault claims. Many point to the OCR’s 2011 “Dear Colleague” letter, which instructed schools to lower the standard of proof they use in these cases to a “preponderance of the evidence” standard, as a turning point in the national discussion about college sexual assault. As we have previously noted on this blog, schools jumped to follow OCR’s guidance for fear of losing federal funding.

As the policies and procedures that have been implemented in the wake of the 2011 OCR “Dear Colleague” letter have gone into effect, there has been a sea change in how schools address allegations of sexual assault by and against their students. Recently, journalists, legal experts, and those of us who represent accused students have raised concerns that the procedures put in place to address sexual assault claims do not comport with basic notions of fairness or due process, and therefore may not be accurate at determining whether sexual assault has actually occurred. As those concerns were first being aired in the public discourse, students who had been disciplined by their schools following sexual assault adjudications began to sue the schools, alleging that they had violated their rights to due process, had violated Title IX itself, and had violated contracts the students had with the schools. To date, at least seventy-seven men have filed suit against their colleges on these grounds.

What Does It Take to Challenge a University’s Wrongful Disciplinary Decision Under Title IX?

Published on: April 24, 2015 | by David Russcol

Title IX is a federal law that bans gender discrimination in educational programs that receive federal funds (e.g., almost all college and universities). The Department of Education has interpreted Title IX to require schools to take swift and decisive action in response to complaints of sexual harassment or assault by or against students. In theory, Title IX requires schools to provide a “prompt and equitable” (that is, fair) process for deciding these cases, but in practice these processes are often heavily stacked against the accused student. Although students who are accused of sexual harassment or assault have tried to use Title IX to enforce their rights to a fair disciplinary process, courts have generally not been receptive and have often dismissed them at early stages. I will take a look at a recent decision on one such case and explore why that is.

In Doe v. Columbia University, a male Columbia student calling himself John Doe alleged that he had been wrongly suspended for sexual assault, in violation of Title IX and other laws. According to his complaint (which, at the earliest stage of a lawsuit, is essentially accepted as true), he ran into a female friend (Jane Doe) while studying one night. After taking a walk for an hour, they decided to have sex, and because their roommates were home (and Jane had dated John’s roommate previously), they decided to do so in the dorm bathroom. John waited in the bathroom while Jane got a condom from her room, they had sex, and John went back to his room.

DOE Pays Lip Service to Fairness in New Rules, but Makes Clear that Accused Students’ Rights are not a Priority

Published on: November 4, 2014 | by Naomi Shatz

The Federal Department of Education (DOE) just released its final rules implementing changes to the Clery Act – the law that requires colleges and universities to report statistics about violent and sexual crimes on and near their campuses. While there are some positive developments in the new regulations, overall the requirements regarding disciplinary procedures illustrate that the DOE does not understand how its policies continue to undermine accused students’ rights to basic fairness.

The new rules make clear that students must be permitted to have an advisor of their choice during campus disciplinary proceedings, and that that advisor may be an attorney (34 C.F.R. 668.46(k)(2)(iii) and (iv)). This is a step forward from the DOE’s April 2014 guidance on Title IX, where it simply required that schools have the same rules for both students regarding whether they could have an attorney present during the proceedings. Many schools currently bar attorneys from participating or even from being in the room at all for disciplinary hearings. However, while a student’s advisor must be permitted into the hearing room, schools continue to be allowed to place any restrictions they want on the advisor’s participation. In other words, a student can bring an attorney, but the school can still prevent the attorney from speaking in the hearing. The rules also state that the school must provide the accuser and the accused “any information that will be used during informal and formal disciplinary meetings and hearings.” 34 C.F.R. 668.46(k)(3)(B)(iii). While this provision seems like an obvious requirement, currently schools are permitted, and often do, provide students with only a summary of the evidence that a school administrator deems “relevant” to the case, rather than the full body of evidence that has been submitted to the school.