August 31, 2018 Feature

Campus Rape—A Complex Legal Landscape

By Erin Gordon

Though studies show as many as one in four women are raped or sexually assaulted while in college, many campus violence cases are far from clear-cut. They sometimes involve alcohol, a mixture of consensual and non-consensual acts, and a lack of witnesses. And campus resolution procedures are often unclear, unreliable, and inconsistent, resulting in damaging divisions—between men and women, and between advocates for the victims and those for the accused—within university communities.

To help remedy that, the Obama administration, which described the statistics on sexual violence on college campuses as “both deeply troubling and a call to action for the nation,” in 2011 issued the so-called “Dear Colleague” letter, which instructed colleges and universities to strongly and swiftly address sexual violence on campus per their obligations under Title IX. An equity statute, Title IX of the Education Amendments of 1972, 20 U.S.C. §§ 1681 et seq. and implementing regulations (34 C.F.R. Part 106) require that colleges and universities receiving federal funding ensure a gender-equitable educational atmosphere.

In particular, Title IX prohibits gender discrimination, which includes sexual harassment and misconduct, and the Dear Colleague guidance broadened that obligation, requiring colleges and universities to promptly and effectively respond to sexual assault allegations. In 2014, the Obama administration issued further guidance, expanding its expectations for procedures for these cases. For example, it advocated a preponderance of the evidence standard of proof (rather than the higher “beyond a reasonable doubt” standard) and the elimination of direct cross-examination between parties.

According to some, the Dear Colleague letter and subsequent guidelines sacrificed procedural fairness for accused students in favor of the rights of accusers, resulting in too many wrongfully punished students. They argued that due process issues included accused students not receiving notice of policies they were alleged to have violated, not having the opportunity to provide or respond to evidence, not having the right to a lawyer during hearings, and not being permitted to present expert testimony.

In September 2017, Secretary of Education Betsy DeVos and the U.S. Department of Education’s Office for Civil Rights rescinded the Obama administration’s Dear Colleague letter and subsequent communication and issued their own interim guidance for campus assault cases. Now, for example, colleges and universities are permitted, but not required, to raise the standard of proof, employ mediation, and eliminate appeals. Because Title IX cases often result in harsh punishments like suspension and expulsion, supporters of the DeVos interim guidance say campus assault proceedings are enough like criminal prosecutions that the higher standard of proof, among the other recommended safeguards, is warranted.

“I completely disagree with that,” says Lisalyn Jacobs, an expert on sexual and domestic violence, civil rights, and education, and a 2015 recipient of the ABA Commission on Domestic and Sexual Violence 20/20 Vision Award. “The Dear Colleague letter reminded schools of their obligation regarding Title IX enforcement, which includes being responsive to the needs of survivors—which may include counseling, time off, or a dorm or schedule change—and holding responsible those accused.”

But some insist the preponderance of the evidence standard disadvantages the accused in those commonly close cases without much evidence. “Essentially, you can be labeled an assaulter based on a hunch,” says Susan Kruth, a staff lawyer at the Philadelphia-based Foundation for Individual Rights in Education (FIRE), a nonpartisan organization that advocates freedom of expression and due process at colleges and universities. The Dear Colleague letter made it harder for accused students to get due process, according to Kruth. “It was low standard on top of low standard.”

Kruth insists that FIRE doesn’t take issue with the vast majority of Title IX or its implementing regulations. Rather, she says, Obama’s mandates resulted in unfair procedures such as no guaranteed presumption of innocence, no notice regarding the substance of allegations, no right to cross-exam witnesses, and no access to evidence. As a result, Kruth believes the DeVos interim guidance is “a step in the right direction to protect whoever should be vindicated. Everyone needs equal access to education.”

But Jacobs insists that those who’ve made due process and fairness arguments misunderstand how the Title IX resolution process works. “These are civil rights matters—these are not courts of law,” Jacobs explains. “Clearly, a survivor of campus assault has choices to seek redress. In the campus disciplinary process, the standard used is preponderance of the evidence, which is appropriate in civil and civil rights matters. There’s nothing new here, and it does not advantage survivors.”

When cases are mishandled, it’s not a policy problem, it’s an implementation problem, Jacobs adds. “Courts have consistently upheld findings consistent with the Obama administration position” that the accused in a campus assault case is not entitled to trial-like rights of confrontation or cross-examination in disciplinary proceedings.

One of the primary challenges of these cases is that Title IX is “trying to do multiple things at once,” explains Naomi Shatz, a Boston-based lawyer with Zalkind Duncan & Bernstein LLP, who represents students—both accused and survivors—and faculty in these cases. “With respect to sexual harassment and assault, Title IX seeks to ensure equal access to education, but it also includes a punitive process for those who violate rules. Those goals are very different.”

As a result, proceedings must be transparent and fair, respecting the rights of all involved students, according to Shatz, who has written extensively about campus sexual violence. “I’m less concerned about the standard of proof than I am about procedural protections,” she says. “When combining the lowest possible standard of proof and a complete free for all on procedures, that’s bad for both parties.”

Instead, campus policies should require adequate notice to the accused of the allegations, the right to have lawyers present, the ability to provide scientific or forensic evidence, the availability of informal mechanisms of resolution, and the right to appeal both the finding and the sanction.

Additionally, Shatz contends that campus assault cases are ripe for restorative justice, which focuses on rehabilitation of the accused through reconciliation with the victim and the community. As it stands, the typical punishment of suspension or expulsion “is not the best way for the complaining student to get an education or to address the behavior of the accused,” Shatz explains. “Restorative justice looks at the harm, what the harmed individual needs to get resolution, and how the accused can take responsibility for the harms caused.”

For its part, the ABA Criminal Justice Section’s Task Force on College Due Process Rights and Victim Protections in June 2017 issued recommendations for resolving campus sexual misconduct allegations at colleges and universities. After evaluating different systems of resolution, the Task Force concluded that the single investigator model of adjudication (in which an investigator also serves as decision maker or presents findings to a decision maker who does not personally judge witnesses’ credibility), is structurally unfair, particularly when suspension or expulsion is at issue. The Task Force recommended that colleges and universities instead adopt an adjudicatory model in which the investigator and decision maker are different, and evidence is presented live with questioning by the parties and a decision-making panel.

Laura Dunn, a nationally recognized victim-turned-victims’ rights lawyer, serves on the ABA Task Force. She supports an adjudicative model with an inquisitorial—as opposed to an adversarial—mission. “I’d also like to see regional centers explored,” adds Dunn, who was a guest of Vice President Joseph Biden at the formal announcement of the 2011 Dear Colleague letter. “Regional centers would have campus-level proceedings—but not on campus—with trained investigators and adjudicators, which would ensure uniformity among cases. Exploring them would be worthwhile. In the meantime, states have an opportunity to do some experimenting.”

In announcing the rescinding of the Dear Colleague letter, DeVos said the Department of Education will engage in rulemaking on Title IX responsibilities, soliciting comments from stakeholders and the public during the rulemaking process. In the wake of the #MeToo movement, which launched a month after DeVos issued the interim guidelines, colleges and universities—whose reputations are connected to how they protect students from violence—are unlikely to proactively shift current policies until definitive mandates are issued.

So in the meantime, some states have indeed passed new campus assault laws, some codifying parts of the Dear Colleague letter. California, New York, and Illinois, for example, have exceeded what federal rules require. The nuances of these laws, the Department of Education proscriptions, and the fairness of individual campus procedures will continue to be interpreted and refined by federal and state courts.

“These cases are really tricky,” Shatz says. “Every school is different, and it’s really hard on the students going through this. These cases can be a time-intensive, stressful, and lengthy process, sometimes taking six to eight months to resolve. Everyone involved is entitled to clarity, to know the procedures, to have access to evidence and a measure of procedural fairness so they can feel the process is reliable.”

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By Erin Gordon

A former lawyer, Erin Gordon is a freelance legal affairs journalist based in San Francisco.