Student Rights & Title IX

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.

An Overview of the Department of Education’s New Rules Implementing the Clery Act

Published on: October 29, 2014 | by Naomi Shatz

Last week the Federal Department of Education released amendments to the rules implementing the Clery Act (20 U.S.C. § 1092(f)) – a law that requires colleges and universities to record and publish information about crime on and near their campuses. The new amendments require schools to collect and publish statistics regarding incidents of dating violence, domestic violence, sexual assault, and stalking as well as information about their procedures for handling these incidents in the schools’ annual reports. Some key changes made by this new rule include:

A New Definition of Rape: The definition of rape will be revised in the Clery Act, which previously used an 80-year-old definition used by the FBI. From 1927 to 2011 the FBI’s Uniform Crime Reporting Program – and by incorporation the Clery Act – defined rape as: “the carnal knowledge of a female, forcibly and against her will.” In 2011 the FBI updated its definition to reflect that both men and women can be raped, that physical force is not a required element of rape, and that rape may be accomplished by penetration with objects as well as sex organs. The definition that the FBI now uses, and that colleges and universities will now be required to use is: “Penetration, no matter how slight, of the vagina or anus with any body part or object, or oral penetration by a sex organ of another person, without the consent of the victim.”

New Categories of Bias for Hate Crimes: Under the Clery Act, schools are required to report hate crimes that occur on their campuses or school-owned property. Before the VAWA reauthorization, the categories of bias that could form the basis of a hate crime were: race, religion, ethnicity, gender, sexual orientation, and disability. The amendments add the category of “gender identity,” and separate out “national origin” from “ethnicity” to make more clear what types of bias are covered by the law.

So You’ve Been Accused of Sexual Assault or Misconduct on Campus. Here’s What You Need to Know

Published on: October 27, 2014 | by David Russcol

Colleges, universities, and graduate schools have had a reputation for not taking students’ complaints of sexual misconduct seriously. School disciplinary systems that were set up to deal with cheating, plagiarism, and more “academic” misconduct are ill equipped to deal with the complexities of interpersonal relationships that often come into play when there is conflict regarding sex. Undoubtedly some schools have swept accusations of rape or harassment under the rug. But in about 2001, the pendulum started to swing in the opposite direction, and today schools are under intense pressure from the federal government to investigate, convict, and discipline students as quickly as possible for any perceived incident of sexual misconduct, or else risk the “death penalty” of losing all federal funding. Because schools are no better equipped to deal with adjudicating sexual assault complaints now than they were 10 years ago, this well-intentioned reversal of attitudes frequently results in an unfair process where innocent students can be quickly railroaded to a preordained outcome in which they are branded rapists and expelled without any of the protections they would receive in the criminal justice system.