Sexual misconduct and assault on college campuses have taken center stage in America in the recent times. Students—typically young men—find themselves in the midst of a veritable minefield in which institutions of higher education are using their internal disciplinary procedures to try students for claims of sexual misconduct and assault and to mete out penalties, including expulsion, suspension, and a permanent scar on their academic record. The impetus behind these disciplinary proceedings is the interpretation given by the U.S. Department of Education to Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681(a).
In a letter dated April 4, 2011, the Department of Education’s assistant secretary for civil rights at the time, Russlynn Ali, issued what has become known as the “Dear Colleague” letter to every college and university receiving federal funding (which is to say, most colleges and universities in the United States). The 19-page letter contains guidance and directives on how schools are to address sexual assault and misconduct allegations in order to comply with the department’s view of Title IX.
Since the issuance of the letter, there has been a marked increase in the number of colleges and universities under investigation by the department’s Office for Civil Rights for Title IX violations, and an increasing number of students have been the subject of sexual misconduct complaints adjudicated in school disciplinary proceedings. Sanctions imposed in these proceedings range from probation to expulsion, all of which make continuing education and later job prospects very difficult, if not impossible, for the accused student to pursue, despite high grades and previously unblemished academic records.
Despite their serious consequences, these disciplinary proceedings differ dramatically from cases handled in court and are often marked by a lack of due process. To fully understand the manner in which due process has fallen by the wayside in these proceedings, a brief description of them is necessary.