Strong Due Process Protections Are Essential for the Protection of Vulnerable Campus Groups
SAVE
June 17, 2021
Due process protections are especially important to assure the rights of vulnerable groups such as LGBT persons, racial minorities, disabled students, and immigrants:[1]
LGBT Groups
Former James Madison University faculty member and speech coach Alyssa Reid was accused by her former female partner of a “non-consensual relationship.” Reid eventually was held responsible for violating the university’s Title IX policy. Reid recounted movingly,[2]
“When you’re accused of sexual misconduct, it’s fundamentally different. It’s something that critiques the nature of who you are to your core, that sticks with you forever….JMU did not provide me with due process. It provided me with the illusion of due process….This hearing has ruined my life. This hearing ruined my dream. I have helped students find their place in the world. And the irony now is that I’m lost.”
Reid recently filed a lawsuit against James Madison University alleging multiple due process violations.[3]
In a second case, a male student at Brandeis University filed a complaint against his former male partner, alleging non-consensual sexual interactions. Even though the men had been in a long-term relationship, the campus investigator treated each sexual incident as if the men were strangers to each other, leading to a campus finding of “responsibility.” In a milestone decision, Judge Dennis Saylor vindicated the accused student, opining,[4]
“If a college student is to be marked for life as a sexual predator, it is reasonable to require that he be provided a fair opportunity to defend himself, and an impartial arbiter to make that decision.”
Saylor also noted that Brandeis had forced the accused student to:
“defend himself in what was essentially an inquisitorial proceeding that plausibly failed to provide him with a fair and reasonable opportunity to be informed of the charges and to present an adequate defense.”
African-Americans
During a 2015 Senate hearing on campus sexual assault, Harvard Law Professor Janet Halley made the observation that in her experience, “male students of color are accused and punished at ‘unreasonably high rates’ in campus sexual misconduct investigations.”[5] Two years later, journalist Emily Yoffe posed this question in The Atlantic: “Is the system biased against men of color?” explaining, “black men make up only about 6 percent of college undergraduates, yet are vastly overrepresented in the cases I’ve tracked.”[6]
Black faculty members also have been targeted in campus Title IX proceedings. The nation’s first elected black governor, former Virginia Governor L. Douglas Wilder, penned a scathing letter regarding his “unimaginable nightmare at Virginia Commonwealth University” after he was erroneously accused of sexual misconduct.[7]
In 2017, the Office for Civil Rights investigated Colgate University for potential race discrimination in its sexual assault adjudication processes. During the course of the investigation, the institution had to reveal the fact that “black male students were accused of 50% of the sexual violations reported to the university,”[8] even though black students represent only 5.2% of all undergraduate students.
More recently, Title IX For All analyzed demographic data from the approximately 650 lawsuits filed against institutions of higher education since 2011. Among the 30% of cases in which the race of the accused student was known, black students are four times as likely as white students to file lawsuits alleging their rights were violated in Title IX disciplinary proceedings.[9]
Learning Disabled Students
Because learning disabled students may have a more difficult time navigating social relationships, students with autism and other learning disabilities are at greater risk of accusations of sexual misconduct.[10],[11],[12],[13],[14] These articles reveal a pressing need for policy guidance to clarify the interface between Title IX and the Americans with Disabilities Act.
Following is an illustrative case from New York:
Jason Doherty, a student at the State University of New York, Purchase had been diagnosed with Asperger Syndrome and was classified as a disabled student. During freshman orientation, Doherty had a contentious interaction with three female students, resulting in a no-contact order being issued against the man. As a result, Doherty alleged that the order interfered with his academic success, and that he suffered from anxiety and depression as a result.
In his lawsuit against the institution, Doherty alleged that, “Defendants did not take into account [Plaintiff’s] disability when issuing the no contact orders, nor did they consider whether the no contact orders were being requested in an effort to tease and bully [Plaintiff] because of his disability.’”[15] The judge ruled that Doherty’s allegations of failure to accommodate were sufficient to sustain the ADA claim.
In the words of Acting Assistant Secretary for Civil Rights Suzanne B. Goldberg, “Our nation’s civil rights laws require fair and nondiscriminatory school discipline practices, yet we have data that show concerning disparities based on race, sex, and disability in the administration of discipline.”[16] To end this wave of discrimination, the due process rights of vulnerable groups on campus need to be affirmed, protected, and vigorously defended.
Citations:
[1] Raul Jauregui (June 2, 2021), Title IX Needs to Protect Every Student Present in the US, Including Dreamers. https://www.saveservices.org/2021/06/title-ix-needs-to-protect-every-student-present-in-the-us-including-dreamers/
[2] New Civil Liberties Alliance, Alyssa Reid v. James Madison University, et al. https://nclalegal.org/alyssa-reid-v-james-madison-university-et-al/
[3] New Civil Liberties Alliance, Alyssa Reid v. James Madison University, et al. https://nclalegal.org/alyssa-reid-v-james-madison-university-et-al/
[4] Doe v. Brandeis University, 177 F. Supp. 3d 561 (D. Mass. 2016). https://casetext.com/case/doe-v-brandeis-univ
[5] G. Piper (Aug. 4, 2015). Shut out of sexual-assault hearing, critics of pro-accuser legislation flood Senate committee with testimony. https://www.thecollegefix.com/shut-out-of-sexual-assault-hearing-critics-of-pro-accuser-legislation-flood-senate-committee-with-testimony/
[6] Emily Yoffe (Sept. 11, 2017). The Question of Race in Campus Sexual-Assault Cases. The Atlantic. https://www.theatlantic.com/education/archive/2017/09/the-question-of-race-in-campus-sexual-assault-cases/539361/
[7] L. Douglas Wilder (June 3, 2020). Secretary DeVos Right to Restore Due Process on Campus. The Roanoke Times. https://www.roanoke.com/opinion/commentary/wilder-secretary-devos-right-to-restore-due-process-on-campus/article_dfac7ff4-7d4d-5109-9657-2532a0816f1d.html
[8] Soave, Robby (Sept. 14, 2017). We Need to Talk About Black Students Being Accused of Rape Under Title IX. Reason. https://reason.com/2017/09/14/we-need-to-talk-about-black-students-bei/
[9] Title IX for All (July 6, 2020). Plaintiff Demographics in Accused Student Lawsuits. https://www.titleixforall.com/wp-content/uploads/2020/07/Plaintiff-Demographics-by-Race-and-Sex-Title-IX-Lawsuits-2020-7-6.pdf
[10] William Russell (Jan. 1, 2017). Sexual Misconduct on Campus: A Brief Introduction to Title IX Guidelines and Policies for Parents and Caregivers. Autism Spectrum News. https://autismspectrumnews.org/sexual-misconduct-on-campus-a-brief-introduction-to-title-ix-guidelines-and-policies-for-parents-and-caregivers/
[11] Lee Burdette Williams (Feb. 8, 2018), The Nexus of Autism and Title IX. Inside Higher Ed. https://www.insidehighered.com/views/2018/02/08/colleges-should-understand-special-issues-related-autism-and-title-ix-opinion
[12] Susan Stone & Kristina Supler (July 12, 20218), ‘I Don’t Get It:’ Why College Students with Autism are Vulnerable to Charges of Sexual Misconduct. https://studentdefense.kjk.com/2018/07/02/i-dont-get-it-why-college-students-with-autism-are-vulnerable-to-charges-of-sexual-misconduct/
[13] Michael Allen (Dec. 20, 2018), Disability Rights and Title IX. https://allen-lawfirm.com/2018/12/20/disability-rights-and-title-ix/
[14] Golub, David (May 9, 2021), How Will Title IX Policies Affect Autistic Students? SAVE. https://www.saveservices.org/2021/05/how-will-title-ix-policies-affect-autistic-students/
[15] Doherty v. Bice, No. 18-CV-10898 (NSR), 2020 WL 5548790, *8 (S.D.N.Y. Sept. 16, 2020)
[16] Department of Education (June 4, 2021), U.S. Department of Education’s Office for Civil Rights Seeks Information on the Nondiscriminatory Administration of School Discipline. https://www.ed.gov/news/press-releases/us-department-educations-office-civil-rights-seeks-information-nondiscriminatory-administration-school-discipline#:~:text=%22Our%20nation’s%20civil%20rights%20laws,in%20the%20administration%20of%20discipline.