Do student conduct hearings match up with Constitutional Law?

A “Dear Colleague” letter issued to colleges, universities and schools April 4, 2011, strongly recommended schools use a “preponderance of the evidence” standard in student conduct proceedings. This was to be in compliance with Title IX of the education amendments of 1972.

With over 100 schools currently under investigation for Title IX issues, the “preponderance” might as well be made the required standard as essentially, schools are being forced to judge cases in that manner to preserve their federal funding.

If schools are to conduct institutional conduct proceedings and testimonies given in such proceedings are admissible to be later used in a criminal court, the accused and the complainant should have the right to counsel in campus sexual assault proceedings.

The accused and the complainant both deserve due process rights—such as the right to an attorney and to appeal as the procedural changes raise the odds of innocent students being found guilty and expelled. Lady Justice’s scale has tipped too far and on campus, the accused is now in jeopardy of being mistreated, Tom Dennis of the Grand Fork Herald said.

“If you say nothing, that can be used against you. But if you speak up, that can be used against you, too—especially later,” Dennis said. “For if criminal charges result from the accusation, then everything you say at the hearing will be admissible in court. What to do? Get a lawyer.”

Many schools argue the proceedings are disciplinary, but being that the testimony—on behalf of the accused—can be later used in a court of law, students should have the right to legal representation in campus courts for charges of harassment, rape and theft (criminal matters) to be in accord with their Sixth Amendment rights.

For decades, activists have argued that campus policies were biased against accusers, the officials who run the investigations lacked training and assailants were absolved far too easily, said Ariel Kaminer, journalist for the New York Times.

“Now, defense lawyers are denouncing inconsistent standards and inadequate training, but they arrive at the opposite conclusion: the system is biased, the lawyers say, against men,” Kaminer said.

The political focus on addressing sexual assaults on campus has been disappointingly one-sided, focusing almost exclusively on the rights of complainants while paying insufficient attention to the rights of the accused.

The Department of Education and the rule-makers intentionally declined to mandate definitions of consent that undermine due process protections, such as so-called “affirmative consent,” which effectively shifts the burden of proof onto the accused student, the Foundation for Individual Rights in Education (FIRE) said.

“This practice is not just unfair to the accused; it reduces the accuracy and reliability of the findings and compromises the integrity of the system as a whole,” FIRE said. “Just as it is morally wrong and unlawful for a college to sweep allegations of sexual assault under the carpet, it is inexcusable both ethically and legally to expel an accused student after a hearing that provides inadequate procedural safeguards. 

The predicament becomes even greater when alcohol is factored into the picture. If both parties are drunk to the point of incapacitation, who should be found guilty?

It is nearly impossible to determine both parties’ intentions and in some circumstances, difficult for both parties to determine when sexual behavior becomes non-consensual.

An attorney defending an accused student at Duke University asked similar questions regarding this “gray” matter.

In this particular campus adjudication process, attorney Rachel Hitch asked Dean of Students Sue Wasiolek what the outcome would be if both students were drunk to the point of incapacity.

“So they have raped each other and are subject to expulsion?”

“Assuming it is a male and female, it is the responsibility in the case of the male to gain consent before proceeding with sex,” Wasiolek said.

The preceding dialogue leads me to question if this can, in turn, be deemed discriminatory under Title IX. If the female has a higher blood alcohol concentration, should she actually be held liable? Could he then file a complaint against her for sexual assault? Assuming all other things constant, gender shouldn’t matter.

Furthermore, one has to ask: are administrators qualified to investigate criminal matters of which would lead to jail time when formally adjudicated in a criminal court?

Students do not testify under oath, and schools are required to determine a verdict for their purposes “in a reasonably prompt time frame” as indicated by the Violence Against Women Reauthorization Act of 2013 (VAWA).

Although I see the importance of finding a verdict quickly lest further traumatize the victim in confronting their assailant and as administrators have a responsibility to keep school campuses safe for students, a prompt resolution endangers the accused’s right to due process and ultimately, right to the finding of truth.

While some of the newly mandated changes by the OCR pose to make sexual assault more transparent and in such, make school campuses safer for students, some additional regulations are in order (appropriate to the circumstances) to protect the accused’s right to due process.

Furthermore, schools should be concerned about matters they are able to properly adjudicate (e.g., academic dishonesty) and in improving measures of prevention. The criminal justice system is the proper forum for sexual assault cases to get assailants not just off campuses, but off the street as well.

A functioning criminal justice system can best provide justice for accusers and accused alike, said Deborah Tuerkheimer, former assistant district attorney and professor of law at Northwestern University. 

“Unlike college administrators, the police and prosecutors are trained to investigate and prove allegations of criminal activity,” Tuerkheimer said. “And unlike in the college setting, criminal defendants are entitled to a wide array of constitutional protections at both the investigative phase and at trial.

“Rather than abandon criminal justice altogether, we should correct the dismissive stance that victims often confront when they turn to the system.”

Other individuals of our age not in college would face that level of scrutiny, and it seems just as reasonable to expect behavior on school grounds to be treated  as it would elsewhere.

I also understand and agree with the reporting standard set by the Department of Education’s Office of Civil Rights and appreciate victims have the option to seek help and share their assault in confidence without immediate disclosure to law enforcement.

This is imperative to encourage victims/ survivors to report their assault and come forward to receive help and support.

That being said, should that undisclosed report become disclosed to campus safety to investigate, so too should it be reported to the police.

If the school is investigating, local law enforcement should be working closely alongside and in that way, the school and local law enforcement can help one another in doing what is in their specialty to do.

The burden has shifted to the accused to present evidence to prove innocence. In that way, their right to due process is endangered. Students should have the right to acquire counsel to accompany them in campus courts.

If both the complainant and the accused had an attorney present, this would be a fair, equitable way to ensure a “more fair” outcome for both parties.

As the burden has shifted to the accused to prove themselves innocent (with a preponderance standard of evidence) some procedures must be allocated to make education proceedings more reliable and fair.