This article, which draws from our decade of experience defending these cases on college campuses across the country, is our attempt to answer that question—and to convince even the most skeptical reader that due process principles shouldn’t die at the dormitory entrance.
And because, in the immortal words of Oliver Wendell Holmes, “a page of history is worth a volume of logic,” we will begin with some history, outlining just a few of the outrageous due process violations we have encountered in our years doing this work.
The Right to Fair Notice: “He Knows What He Did.”
Several years ago, one of our clients at a Mid-Atlantic university received a letter from the Title IX Office at his university telling him he’d been accused of sexually assaulting four different women the previous semester and asking him to provide his response to those allegations the following week.
The letter didn’t name the complainants. It didn’t say where these assaults had supposedly taken place. It didn’t specify when they had taken place, apart from “last semester.” It didn’t specify why the alleged acts were nonconsensual—were the complainants alleging they were too intoxicated to consent, or instead that our client had ignored a “no” from them? It didn’t even state what kind of assault was alleged—and as anyone who has done a Title IX case on a college campus knows, everything from grabbing someone’s butt on up is characterized as “sexual assault.”
So we had a problem. This was a private school, so we couldn’t make any traditional due process arguments. (As all readers of this magazine are well aware, the Constitution does not apply to private actors.) Nor, incredibly, did the school’s policy require it to give a respondent any of this information. To this day, it remains the worst such policy that we’ve ever seen.
That left us with an argument that lawyers resort to in only the most desperate of times: unadorned “basic fairness.”
Nevertheless, we figured all was not lost. It turned out that the lawyer in the general counsel’s office responsible for overseeing Title IX matters had previously served as an Assistant US Attorney. Surely someone with that job history would agree with the argument that people have a right to know who’s accusing them and what they’re accused of doing—even if there’s no policy that actually says that.
So, we called her up. After we explained, in a friendly manner, what the notice said and suggested that surely we could all agree that our client should be entitled to at least know who was accusing him and what he was accused of doing, the former AUSA responded with words we will never forget: “He knows what he did.”
She then proceeded to note, accurately, that the school’s policy did not give our client the right to know any of these things. So, he just needed to give the best response he could, and the investigation would proceed from there.
Well.
Our next call was to The Foundation for Individual Rights and Expression (FIRE), which realized what a travesty this was and agreed to write a letter to the university’s president outlining their concerns. We pushed back on our end, too, and refused to have our client respond until the school at least told him who his accusers were and what they said he did. In the end, the university relented. Three of the four accusers dropped out of the case when they were told they would have to actually attach their names to their allegations. That left only one, whose claims were truly frivolous and were handily defeated during the process.
But this school didn’t have to relent. Amazingly, no federal law at the time required schools to tell students accused of Title IX violations who their accusers were or even what they were being accused of. The school simply caved to pressure and, we would like to think, basic fairness and common sense. But surely no reader of this magazine would defend such a system, regardless of what one may think about the underlying issue of sexual assault on campus.
The Right to Review Evidence: A Two-Foot Stack of Paper and Two Long Days in a Conference Room
Almost as important as the right to know what you’re accused of is the right to get a copy of the evidence that will be used against you at your hearing. This, too, is a fundamental right we cannot trust schools to give students if left to their own devices. A case that we had in the Midwest involved two students who had been in a monogamous relationship for several months. As kids these days are wont to do, they texted each other constantly. Our client had deleted the texts after the breakup, but the complainant had not. So, the only copy of the texts was the copy that she submitted to the school.
Yet, incredibly, the school refused to give us a copy of those texts or, indeed, of any of the evidence that was collected in the entire case. And once again, there was no federal law requiring they do so, nor did the school’s policy mandate it.
Fortunately, the school had a DC campus, so they told us that we could go into a conference room for eight hours a day over the course of two days and take notes on, but not copy, anything in the file. The file, when printed out, was roughly two feet high. It contained literally hundreds of pages of text messages, as well as scores of pages of interviews that were conducted as part of the case. Yet the school, for absolutely no good reason other than that they could, refused to let us have a copy of it, or even to access it electronically.
As anyone who has tried a case can tell you, lawyers like to write notes on things—and especially on transcripts. They like to have in hand a copy of the evidence that will be used against their client. The idea that a lawyer could be forced to go to a hearing, where their client’s future is very much on the line, and not be given even a single page of text messages is hard to believe. But that was exactly what the school did. We ended up winning that case, too, but the fight was much harder than it needed to be.
The Right to Exculpatory Evidence: The Case of the Buried Interview
A third anecdote: A few years ago, at a school in the Southeast, our client was accused of sexual assault after having a one-night stand with a complainant who he regrettably blew off afterwards. The complainant’s story was so baroque that anyone who has done this work for more than a few months would have immediately recognized it as false. Yet the school assigned an investigator who saw himself as a victim’s advocate, not as a neutral collector of facts.
And he did something that we have never seen a school do before or since—conduct a secret follow-up interview with the complainant, then hide the existence of that interview when it turned out to be hugely exculpatory.
There was no mention of the secret interview in the investigation report that he ultimately issued, and no record that the interview had even happened. We only figured it out when the investigation report attributed an item of testimony to the complainant that was not in the only interview transcript we had been provided. So, we knew he must have spoken to her another time. After we pressed the issue with the school’s general counsel’s office, the investigator was finally forced to give us the transcript of the secret interview—which showed that almost everything but the item cherry-picked for the report had been exculpatory, on the most fundamental issues in the case.
This case was also at a private school. So once again, our client had no constitutional due process rights, no right to see exculpatory evidence, and no right under the school’s own policy to be provided with this secret interview. We ultimately had to convince the general counsel of the school that this interview existed, that it may contain exculpatory evidence, and that even though we technically didn’t have a right to it, it was probably a good idea for the school to find it and give it to us. But we had to threaten litigation (and spend a great deal of our client’s money to make that threat credible), all to get access to something so basic as a complainant’s testimony about her own allegations. We won that case as well, and the complainant didn’t even bother to appeal after she realized that her secret interview had been released.
The Right to Cross-Examination: The Prior Relationship That Wasn’t, Then Was
Fourth and, finally, arguably the mother of all due process rights: the right to cross-examination, which John Henry Wigmore famously called “the greatest legal engine ever invented for the discovery of truth.” (Less famously but just as brilliantly, he went on to add, “In the same way, a lawyer can do anything with cross-examination if he is skillful enough not to impale his own cause upon it.”)
Schools only started being required to permit cross-examination in Title IX cases in August 2020, when the Trump Title IX regulations went into effect. And it became immediately apparent to anyone doing that work how crucial cross-examination is.
The main reason is simply this: While a school adjudicator often has no problem whatsoever grilling respondents over even the most minor details in their stories, no one but the respondent’s advisor has an incentive to treat the complainant with anything but kid gloves. Any university administrator who grills a crying complainant, asking them why their story has changed three times and also contradicts their own text messages from that night, risks a one-way ticket to Cancellation City. (The tweets would just write themselves.)
Not so for a respondent’s advisor, especially a lawyer who doesn’t work for the school. They can do what any good defense lawyer will do—ignore the emotion and focus on the evidence.
We once saw this play out to spectacular effect, when our client insisted that he and the complainant had had a prior, consensual sexual relationship before the night in question, which had informed the way he approached their encounter that night. The complainant, by contrast, had denied the prior relationship multiple times and accused the respondent of making it up. It was only while being cross-examined on what, to the complainant, was a seemingly minor detail that she unintentionally blurted out an admission that, in fact, there was a prior relationship.
You could have heard a pin drop at that point, and the look on the experienced adjudicator’s face—a combination of both shock and anger at being lied to—was absolutely priceless. Our client went on to be completely exonerated, in large part on credibility grounds. Without cross-examination, the complainant’s lie may never have been uncovered, and the just result would likely never have been achieved.
These are just a few examples of some of the grotesque violations of due process and basic fairness that we’ve seen over the past decade of doing this work. We could tell more—of school personnel surreptitiously authoring investigation reports and final decisions purportedly written by nonschool personnel; of schools refusing to collect phone records that would have indisputably proven or disproven a case (and which did exonerate our client, but only after we had to file suit and issue a subpoena to obtain them); and more. Similar violations happen all the time at universities across the country. They unfortunately are not outliers.
But, so what? You might be thinking that these kids are accused of sexual assault, and this sort of thing is never going to happen to you, or anyone you know. Plus, this is just college, not the criminal justice system, right? At worst, these kids are looking at expulsion, not prison time. So why should you care if they don’t get due process in Title IX investigations?
There are at least two reasons you should care.
One, people should care about due process in these cases for the same reason that people care about due process in criminal cases: It’s a fundamental tenet of how Americans conceive of any justice system, whether that’s in court or on campus. Due process is a foundational principle of American thought, and it should apply whether the Leviathan that is seeking to punish you is the state or a college.
To be sure, how much process you get will and should vary with the context. Someone charged with a death-eligible crime should certainly get more process than a college kid charged with inappropriate touching. But that just means there should be a sliding scale, not that the college side of the scale should get next to no attention.
The second reason that people should care about due process on college campuses is that it could happen to you or someone you love. If we had a dollar for every parent who called and told us, in the very first conversation, that they were firmly in the camp of “believe all survivors” until their son or daughter had been accused, we would either be retired or at least having ChatGPT write this article. So, too, if we had a dollar for every parent who called us and insisted that their kid was raised right and would never assault someone.
And to be clear, we believe these people. In the hundreds of cases we have handled over the last decade, we can count on one hand the number of clients whom we think might have actually done what they’re accused of doing. That is not an exaggeration. Maybe it’s who hires us, but we’ve seen an awful lot, and the epidemic of false or, at best, deeply misguided allegations of sexual assault is grossly unreported. For every Duke lacrosse or UVA/Rolling Stone case, there are many more such equally false cases that go unreported.
But why can it happen to anyone? Some of it is simply generational, in a way that is hard for people who don’t have frequent exposure to young people these days to understand. Anyone who has read The Coddling of the American Mind—the terrific 2019 book about campus culture by Greg Lukianoff and Jonathan Haidt—will know the outlines of this story. We are raising a generation of children who are wrongly taught, and have come to believe, that they are fragile, instead of anti-fragile. That is, we are teaching them what Lukianoff and Haidt refer to as the “first Great Untruth, the Untruth of Fragility: What doesn’t kill you makes you weaker.”
How does that manifest itself in the average Title IX case where someone is falsely accused? Usually in one of two ways: The first is in a one-night stand case, and the second is in what we call a “relationship” case. These don’t explain every false allegation, but in our experience they recur frequently.
First, the one-night stand case: These cases usually follow a typical pattern. Two people meet at a party and sleep together. They both had enough to drink to make bolder and poorer choices than they might make sober, but not to be “incapacitated” according to how universities, or the dictionary, or common sense, would define that.
That is, these two might wake up in the morning regretting what they had done with a stranger—because they never would have made that same choice fully sober—but they will fully remember having done it and having had the capacity to make that choice, however bad it was, at the time.
In other words, a drunk choice is still a choice, and it’s not the same thing as being incapacitated.
What often leads to the next-day feelings of regret is that after the encounter, one of the two people (typically the guy) treats the other person with less respect than they should have. Sometimes it’s leaving as soon as the act is done. Other times it’s an abrupt change from the flirty and friendly banter they had been having at the party before the hookup, to simply making a few terse comments before muttering something about wanting to get back to the party after the hookup. And still other times it’s leading the other person to think they might be interested in a relationship, but then never calling again.
Whatever the cause, the other party winds up feeling hurt, and rightfully so. That person then goes back to the dorm and starts talking to their friends. They might mention that they’re pretty sad about what happened and really wish they hadn’t done it. Their friends might start asking questions such as “Had you been drinking?” or “Do you think you would have done this if you were sober?” This being college, and these being young adults, the answers to those questions are, respectively, usually “yes” and “no,” which then leads the friends to convince their hurt friend that perhaps they didn’t consent to what happened.
So, what starts as sadness, regret, and a legitimate right to feel hurt is, through processing and conversation, often transformed into a belief that something much worse happened. In today’s day and age, few are willing to say to their friends, precisely when those friends are hurting, “Well, maybe if you hadn’t had that third beer, you wouldn’t have slept with someone you just met.” And few will say to a friend expressing they wished they hadn’t slept with someone, “Well, yeah, we all do things when we’re drunk that we wouldn’t do sober. Do better next time.”
We just don’t live in that sort of tough love world anymore. Whatever the net gains of that change might be, the unfortunate effect of today’s coddling culture is that kids don’t take accountability for their poor choices anymore, nor are they encouraged to. The focus nowadays is on feelings rather than facts, and—pace Rousseau—it’s more than a little dangerous to build your concept of reality using your feelings as the starting point. Today, if someone made you feel a certain way, something bad must have happened and they should be held accountable. Never mind what you did to help create the situation or the actual details of what exactly that person might have done.
That’s the first way the “what doesn’t kill you makes you weaker” mentality leads to these campus cases. The second way is through what we call a “relationship” case. In relationship cases, people date for several months or even years. A breakup comes, it’s bad, and one of the people starts looking back on the relationship with a lot of sadness and mixed feelings. Over time, especially when you add the well-documented spike of anxiety and depression in young people these days (particularly post-COVID), that person can start to see bad times in the relationship as something more sinister. A heated argument is experienced after the fact as bullying or intimidation. Multiple calls in a short period of time in an effort to make up become stalking. A celebratory night months ago that involved a couple of drinks too many becomes sex while incapacitated. And so on.
The upset party in the relationship then goes to the Title IX office for help processing what happened. And just as to a hammer everything is a nail, to many Title IX coordinators every bad sexual experience can be assault if you just look at it the right way. So, instead of processing a bad relationship through Smiths tapes and ice cream, as members of an earlier generation were wont to do, the hurt and the pain get processed through a system that is designed to produce not closure, but a charging document and life-altering consequences.
That is why anyone who cares about due process should want due process on college campuses—and more than just a little bit of due process. Because this truly can happen to anyone you know, even when they’ve done nothing wrong. And when it does happen, just as in the criminal justice system, the more due process you have and the better the lawyer you have, the more likely you are to be exonerated. Conversely, people who can’t afford lawyers and don’t know how to effectively use what little process they’re given wind up getting railroaded.
In fact, one of the earliest cases we ever handled was for a second-semester senior at a top school who was on full scholarship. He was accused by an ex-girlfriend but told by his dean not to worry and to just trust the process. He was expelled only a few months shy of graduation and came to us after the fact, at which point there was nothing we could do but file a Hail Mary appeal, which the school promptly rejected. No one ever told him that he had a right to a lawyer from day one.
Today, we still get at least one call a month from someone, usually a first-generation college student, who’s been accused of a Title IX violation but can’t afford a lawyer. Small firms like ours can only take so many pro bono cases, so we can’t help even close to everyone who needs our help. (That’s why we actually wrote a guide to defending oneself in these cases, because we thought good advice from us would be better than no advice at all.)
Moreover, there’s no nonprofit we are aware of dedicated to providing legal representation to respondents in Title IX cases. Contrast that with complainants, for whom free lawyers fortunately abound. In DC, for example, there is the Network for Victim Recovery of DC, which provides free lawyers for complainants bringing Title IX cases on campus. They will even help you file a civil protection order in court. There are many such organizations like this across the country. But for respondents, it’s either hope your parents can afford to hire a lawyer, get someone who will do it pro bono and whose law firm won’t object to defending an accused rapist, or go it alone.
The system is stacked against respondents, many of whom are wrongfully accused and can’t afford a lawyer to help them navigate the confusing Title IX world. They cling to the idea that they’ll be treated fairly and the truth will come out. But it often does not. That’s why real due process in campus cases is so important.
So, What’s the Solution?
Given the lack of due process in these cases, some people have suggested over the years that schools should get out of the sexual assault adjudication business entirely. “Let the criminal justice system handle these cases,” say people who (ironically) tend to see themselves on the respondents’ side of these issues. We think that’s wrong, and we suspect that most readers of this magazine will as well. Schools have a legitimate interest in keeping order on campus, which is why they (rightfully) handle all kinds of other alleged conduct violations. Allegations of sexual assault shouldn’t be carved out from that.
What’s more, from the side of people who are usually working from the respondents’ perspective, only someone with little to no experience in the criminal justice system could believe that that’s where we should send all of these cases. People who say that don’t understand the massive leverage wielded by the state. Even in the world’s weakest sexual assault case, a defendant can be looking at decades or even life in prison. Many people faced with that charge would decide, not unreasonably, to accept a sweetheart plea that “only” makes them take a misdemeanor charge and register as a sex offender for the next 10 years or more. Forcing garden-variety campus sexual assault cases into the criminal justice system would turn what we see as an epidemic of false allegations into an even worse epidemic of false guilty pleas.
We strongly believe that the solution here is for the federal government to impose a due process floor in Title IX cases—a minimum standard of the required process respondents are due—and schools can decide for themselves how high the ceiling should go, and if they want to impose additional due process protections above and beyond the federal standard. That floor should not be a low one. It must include, at a minimum, the right to a full description of the actual allegations being made before any kind of response is required; the right to see literally all of the evidence a school collects, and to see it in a way that makes its review easy; and the right to a hearing that involves meaningful cross-examination.
None of those should be controversial. There’s no legitimate justification for withholding details about the allegations from a respondent until after they respond to them. Telling an accused student everything that’s been reported places no conceivable emotional burden on a complainant. Its only theoretical justification is the idea that telling accused students too much information inevitably leads to them crafting false stories—which only make sense on the presumption that accused students are guilty. In what other system of justice do we proceed from the unstated assumption that accused individuals are guilty and should be treated as such?
Nor is there any excuse for withholding subsets of evidence from accused students—or complainants either—or sharing it only in ways that make it impractical to meaningfully review. Doing so only makes sense if you think that testing the evidence tends to privilege a favored side over the other. If the process is truly about finding out what happened, as best as that can be determined, then even evidence the school thinks it will never rely on should be shared with the parties. It may be hard to believe, but big institutions do, in fact, often get things wrong.
Nor, finally, should there be any reluctance to allow for live cross-examination. It’s legitimate for schools to be concerned about the emotional burdens that their processes place on complainants, and cross-examination can certainly be stressful. But it’s also the greatest tool for uncovering truth, in this context as much as any other. It is an assaulted complainant’s best tool at showing they are a survivor, just as it is an innocent respondent’s best tool for showing they are falsely accused. When the stakes are life-altering—as they are for assaulted complainants and falsely accused respondents—discovering truth must be prioritized.
Schools have learned, and continue to learn, how to conduct these processes in ways that are sensitive to the emotional toll they understandably take on the parties. It is absolutely legitimate for schools to be concerned about the ways their processes burden complainants (and respondents too); but to lessen that burden by discarding real due process is simply to sacrifice innocent respondents to achieve it. It’s the easy, cookie-cutter way out for schools. The real work of supporting complainants’ individual needs, in their individual cases, is harder than that. Schools need federal standards to force them to take that more difficult route. It’s the only route that both protects innocent respondents and supports complainants in truly meaningful ways.
At public schools, the Due Process Clause requires all three in some measure (though not fully) in sexual misconduct cases, particularly in those where suspension and expulsion are possible. As our stories above demonstrate, however, the same is not true at private schools. The 2020 Title IX regulations provided a road map for schools to do these things. It requires that accused students be given access to “any information” that will be used in disciplinary meetings, including the very first (34 C.F.R. § 106.45(b)(2)(i); see also id. § 668.46(k)(3)(i)(B)(3)); it requires meaningful access to all evidence collected by the school, at a meaningful time (id. § 106.45(b)(5)(vi)); and it requires live cross-examination. Id. § 106.45(b)(6)(i). Yet, by the time you read this article, much or even all of that progress may have been undone by the Biden administration’s desire to cave to interest groups on one side of this issue. A federal standard that lacks those requirements—or, worse, is openly hostile to them, as the Obama-era Education Department was with respect to live cross-examination—would be a legitimate tragedy in this area. It will only lead, once again, to increased calls for these matters to be taken out of schools’ hands altogether and placed completely in the hands of the criminal justice system. Every yank of the pendulum too far one way inevitably leads to a bigger swing in the other.
Schools should, and likely will, always have a role to play in conducting Title IX investigations. They simply need to play it fairly, whatever the existing federal standard happens to be. And there are pages and pages of history that can help schools figure out how to do so.
