Author: Edward Bartlett

Florida Enacts New Campus Due Process Law

SAVE

June 30, 2021

Recently Florida Gov. Ron DeSantis signed HB 233, which mandates a number of due process protections, among other things. The law amends Section 1006.60 of the Florida Statutes, which pertains to Codes of conduct and disciplinary measures. The law provides for the following:

1. 1. Timely and detailed notice
   2. Access to all inculpatory and exculpatory information
   3. List of witnesses
   4. Presumption of innocence
   5. Impartial hearing officer
   6. Right to remain silent
   7. Right of the accused to present evidence and witnesses
   8. Active assistance of an adviser, who has the right to present evidence and question witnesses
   9. Right to appeal
   10. Accurate and complete record of the proceedings

The actual language of the bill, including line numbers, is shown below.

(3) The codes of conduct shall be published on the Florida
196 College System institution’s or state university’s website,
197 protect the rights of all students, and, at minimum, provide the
198 following due process protections to students and student
199 organizations:
200 (a) The right to timely written notice. The code must
201 require that the institution or university provide a student or
202 student organization with timely written notice of the student’s
203 or student organization’s alleged violation of the code of
204 conduct. The notice must include sufficient detail and be
205 provided with sufficient time to prepare for any disciplinary
206 proceeding.
207 1. The written notice must include the allegations to be
208 investigated, the citation to the specific provision of the code
209 of conduct at issue, the process to be used in determining
210 whether a violation has occurred and associated rights, and the
211 date, time, and location of the disciplinary proceeding.
212 2. The written notice is considered timely if it is
213 provided at least 7 business days before the disciplinary
214 proceeding and may be provided by delivery to the student’s
215 institutional e-mail address, and if the student is under 18
216 years of age, to the student’s parent or to the student
217 organization’s e-mail address.
218 3. At least 5 business days before the disciplinary
219 proceeding, the institution or university must provide the
220 student or student organization with:
221 a. A listing of all known witnesses that have provided, or
222 will provide, information against the student or student
223 organization.
224 b. All known information relating to the allegation,
225 including inculpatory and exculpatory information.
226 (b) The right to a presumption that no violation occurred.
227 The institution has the burden to prove, by a preponderance of
228 the evidence, that a violation has taken place. Preponderance of
229 the evidence means that the information presented supports the
230 finding that it is more likely than not that the violation of
231 the code of conduct was committed by the student or student
232 organization.
233 (c) The right to an impartial hearing officer.
234 (d) The right against self-incrimination and the right to
235 remain silent. Such silence may not be used against the student
236 or student organization.
237 (e) The right to present relevant information and question
238 witnesses.
239 (f) The right to an advisor or advocate who may not serve
240 in any other role, including as an investigator, decider of
241 fact, hearing officer, member of a committee or panel convened
242 to hear or decide the charge, or any appeal.
243 (g) The right to have an advisor, advocate, or legal
244 representative, at the student’s or student organization’s own
245 expense, present at any proceeding, whether formal or informal.
246 Such person may directly participate in all aspects of the
247 proceeding, including the presentation of relevant information
248 and questioning of witnesses.
249 (h) The right to appeal the final decision of the hearing
250 officer, or any committee or panel, directly to the vice
251 president of student affairs, or any other senior administrator
252 designated by the code of conduct, who must hear the appeal and
253 render a final decision. The vice president of student affairs
254 or person designated by the code of conduct to hear the appeal
255 may not have directly participated in any other proceeding
256 related to the charged violation.
257 (i) The right to an accurate and complete record of every
258 disciplinary proceeding relating to the charged violation of the
259 code, including record of any appeal, to be made, preserved, and
260 available for copying upon request by the charged student or
261 student organization.
262 (j) A provision setting a time limit for charging a
263 student or student organization with a violation of the code of
264 conduct, and a description of those circumstances in which that
265 time limit may be extended or waived.

 

Professor’s Lawsuit Against JMU Highlights Necessity of Campus Due Process Protections

Michael B. Miley

June 21, 2021

Allegations of sexual misconduct or sexual assault are serious charges that demand a serious and consistent process for the investigation and deliberation as to the fault, or lack thereof, assigned to the accused.  Even if a wrongly accused person does not face a severe and visceral punishment such as prison, a finding of fault by an officially-sanctioned institutional authority—particularly as it relates to sexual misconduct—can devastate a person’s life by potentially destroying their professional reputation and private relationships.  All individuals, and groups of individuals, can find assurance in procedures that ensure the law applies to everyone equally.

Campus adjudicative systems have long been criticized by legal scholars for lacking basic procedural protections for the accused, but in 2011, the Department of Education’s Office of Civil Rights issued new guidance for how universities must handle allegations of sexual assault, which has brought those procedural concerns into much greater focus.  The guidance document, known as the “Dear Colleague Letter,” required universities to adopt a “preponderance of the evidence” standard (greater than 50 percent chance allegation is true), granted accusers the right to appeal a university’s finding of no-fault/not guilty, and encouraged universities to restrict an accuser’s right to cross-examination.

Thus, a situation was created where universities—ill-equipped to prosecute sexual misconduct in the first place—faced serious pressure by the federal government to return findings of guilt or responsibility for those accused of sexual misconduct, as too many not guilty verdicts could result in loss of federal funds for non-compliance with agency directives.

A recent federal complaint filed in Virginia is illustrative as to how this process can railroad an individual totally without merit, and why then, due process protections necessarily improve the Title IX process.  In 2015, the complainant, Alyssa Reid, a nationally recognized debater, and professor at James Madison University began a romantic relationship with Kathryn Lese, a female graduate TA who Reid did not supervise and who did not work in Reid’s department.  Indeed, one year into their relationship, an anonymous complaint prompted a Title IX investigation by JMU, which cleared Reid of any wrongdoing in her relationship with Lese for precisely those reasons.

Two years later, their relationship ended on less than pleasant terms and Lese began sending Reid abusive text messages with threats to “ruin” Reid’s career.  Lese then gave a statement to JMU’s Title IX office that did not meet the standard necessary for a formal complaint; it did not allege that their relationship was non-consensual, unwelcome, or negatively impactful to her education.  Reid alleges that JMU discriminated against her because of her sex and sexual orientation when they improperly accepted Lese’s complaint, did not inform Reid of the complaint against her for two months, applied the wrong version of JMU’s Title IX policy to her case, and imposed sanctions on Reid prior to the consummation of the Title IX investigation, hearing, and appeals process; furthermore, there were no representatives of the LGBTQ community on Reid’s hearing panel, and during the hearing, she could not cross-examine Lese and Lese’s witnesses, and was prevented from presenting her own witnesses.

Reid is recognized by students for using her rhetorical skills and communicative abilities to give voice to marginalized individuals and groups, and her voice has been silenced now because of an unstructured process that turned Reid into an unperson: guilty, with no way to prove her innocence.

Often when faced with difficult choices, or a seeming crisis scenario—especially when the government confirms the existence of said crisis—the temptation to temporarily (at least at first) ignore or weaken procedural protections, or components of procedural protections, that are, or may appear to be, impediments to speedy dispositions and decisive institutional action.

The social, economic, and political benefits all Americans receive from the procedural safeguards of our legal system, however, must not be forgotten or ignored.  Indeed, if there are concerns from society, or certain segments of society that government mandated adjudicative systems are not achieving their espoused ideal of “equal justice under law,” the answer is not to dispose of the entire system, and all the protections inherent to it, but rather the answer is to look for ways these due process rights can be strengthened and applied to extrajudicial adjudicative bodies.

Citation:

[1] See Samantha Harris & KC Johnson, Campus Courts in Court: The Rise in Judicial Involvement in Campus Sexual Misconduct Adjudications, 22 N.Y.U. J. Legis. & Pub. Pol’y 49, 53 (2019).

 

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.

PRESS RELEASE

Contact: Rebecca Stewart

Telephone: 513-479-3335

Email: info@saveservices.org

Disregarding Bogus Claims of Activists, Vast Majority of Americans Support Campus Due Process

WASHINGTON / June 9, 2021 – For years, campus activists have promoted a narrative about campus sexual assault using inflammatory terms such as “rape culture.” But analyses reveal these claims to be factually untrue, pointing to the need to restore campus fairness. Over the last decade, campus groups have made a series of questionable claims.

These groups portray campus sexual assault as an exclusively a male-on-female problem. But according to the Centers for Disease Control, nearly identical numbers of men and women are victims of sexual violence. The National Intimate Partner and Sexual Violence Survey reports that each year, 1.270 million women are raped, and 1.267 million men are “made to sexually penetrate” by their female partners (1).

Activists also have repeated the factoid that only 2-10% of sexual assault allegations are false (2). But the actual number is much higher. According to Brett Sokolow, head of the Association of Title IX Administrators, “Probably 40 or 50% of allegations of sexual assault are baseless.” (3)

More concerning is the belief that due process is an obstacle, not conduit to justice. According to this theory, the solution to campus sexual assault was to remove due process protections for the accused. As a result, reporting of incidents supposedly would increase, convictions would multiply, and sexual assault would be curbed. This was the rationale for the federal Dear Colleague Letter policy of 2011, which eliminated due process protections for the accused, such as the right to be represented by counsel.

But the “due process as an obstacle to justice” theory backfired.

A survey sponsored by the American Association of Universities documented increases in campus sexual assaults from 2015 to 2019 among undergraduates, growing by 1.4% for men and 3.0% among women. In 2019, only 11.2% of sexual assaults were reported to campus police, partly because only 45% of victims believed that school officials were “very likely” or “extremely likely” to take their report seriously (4).

Part of the problem can be traced to campus Title IX Coordinators who came to view their role as advocates, not neutral administrators. In many cases, these Coordinators made snap decisions of innocence or guilt, even before the formal investigation began. An early survey of Title IX coordinators concluded that these persons “did not consistently comply with requirements requiring mandatory reporting, did not consistently provide notice to respondents, and often departed from the investigation, documentation, and reporting requirements” of the Department of Education (5).

A 2020 YouGov survey commissioned by SAVE revealed strong public support for campus due process, as well (6):

• Students accused of crimes on college campuses should receive the same civil liberties protections from their colleges that they receive in the court system: 68%
• Students accused of sexual assault on college campuses should be punished only if there is clear and convincing evidence that they are guilty of a crime: 75%
• Students accused of sexual assault on college campuses should have the right to know the charges against them before being called to defend themselves: 80%

Democrats and Republicans expressed similarly high levels of support for campus fairness (7).

This week, the federal Office for Civil Rights is holding a Public Hearing on the Title IX regulation that took effect last August. The Comment submitted by SAVE highlights the strong bipartisan support for campus due process among lawmakers, newspaper editorial boards, organizations, and individual commentators (8).

SAVE urges lawmakers and college administrators to disregard the dubious claims of activist groups, and instead work to uphold the quintessential principle of fairness and due process.

Links:

1. https://ajph.aphapublications.org/doi/10.2105/AJPH.2014.301946
2. https://cdn.atixa.org/website-media/atixa.org/wp-content/uploads/2016/03/12193336/Lisak-False-Allegations-16-VAW-1318-2010.pdf
3. https://www.thecentersquare.com/national/legal-experts-say-bidens-pushing-ahead-to-the-obama-past-on-campus-rape-could-be/article_184d1e3a-3fc0-11eb-956d-87947675f52c.html
4. https://www.aau.edu/newsroom/press-releases/aau-releases-2019-survey-sexual-assault-and-misconduct
5. https://core.ac.uk/download/pdf/232687125.pdf
6. https://www.saveservices.org/wp-content/uploads/2020/11/YouGov-Poll-on-Campus-Due-Process-11.16.2020.xlsx
7. https://www.saveservices.org/wp-content/uploads/2020/11/YouGov-Poll-with-political-party-identification-11.18.2020.xlsx
8. https://www.saveservices.org/title-ix-regulation/