By Brian C. Mahoney, Esq.
Recent legal challenges and the accompanying headlines serve as a reminder that colleges and universities should come to grips with the expectations of Title IX, and develop a campus policy that incorporates adequate due process protections not only for the victims, but for those students accused of sexual misconduct.
Students who are found responsible for sexual misconduct during college administrative proceedings may be suspended or expelled from school and may later find it difficult to resume their academic careers elsewhere, particularly in light of recently-adopted transfer rules. These students are seeking redress in federal and state courts, challenging the school’s adjudicatory process and alleging due process violations, breach of contract and discrimination on the basis of sex. Inadequate policies can lead to an imbalanced investigative approach that can damage a school’s image and reputation, exacerbate harm to victims of sexual violence, and negatively impact an innocent student’s academic and future endeavors.
The legal landscape has shifted profoundly toward combating sexual harassment and assault on college campuses. In part, the impetus for this change was the U.S. Department of Education’s April 4, 2011 “Dear Colleague” letter, which directed academic institutions to develop and implement an adjudicatory process for “prompt and equitable resolution of student and employee sex discrimination cases,” including sexual harassment and violence.
Pursuant to the letter, a school’s obligation to investigate reports of sexual violence is independent of any criminal law enforcement proceeding, which means the school is expected to timely respond to allegations of sexual harassment and violence rather than relying on local law enforcement to handle the issue.
Failure to respond or appropriately deal with allegations of sexual assault could result in the loss of federal or state funding. This consequence is clearly an attention-getter for the institutions that can ill afford a fight for revenue with the federal government. The nexus of funding to results can lead to deficiencies in policies and administration of due process for students, unless policies are subject to regular periodic review and college investigative staff has adequate training to effectively and fairly handle cases where allegations of sexual misconduct and Title IX implications are at issue.
There is a marked increase in court cases that are testing institutional policies. In several cases involving Title IX sex discrimination claims, the expelled students were able to survive the university’s motion to dismiss, whereas previously claims of this nature were routinely dismissed at the trial level. Judicial review of these types of cases may also be changing.
Federal legislative reforms are underway to address the issue. The U.S. House of Representatives is considering two bills that would significantly modify an institution’s administrative process for investigating and responding to instances of sexual assault. A third bill, the Campus Accountability and Safety Act, introduced in the House and Senate would increase an institution’s annual reporting requirements in connection with allegations of sexual assault to include the number of incidents of sexual assault reported to the Title IX coordinator or other responsible employee; alleged victims who sought disciplinary action; incidents handled through the school’s adjudicative process; individuals found responsible through the disciplinary process; individuals found not responsible through the disciplinary process; and a description of sanctions imposed on any student found responsible through the school’s adjudicative process. The bill would also provide the Office for Civil Rights with authority to sanction colleges and universities that mishandle sexual assault cases in an amount equal to one percent of the institution’s entire operating budget for each Title IX violation discovered.
Recognizing the fact there are more than 160 colleges and universities under investigation by the Office for Civil Rights for their handling of alleged Title IX incidents of sexual assault and harassment, crafting an administrative policy that considers and addresses the evolving legal issues discussed in this article can protect colleges and universities from collateral attack while providing students involved in sexual misconduct proceedings with a measure of balance and fairness.
Brian C. Mahoney is a partner of Harris Beach PLLC and leader of the firm’s USA Collegiate Sports Team.
