Understand Due Process and Implement It in Disciplinary Hearings
Universities have competing responsibilities. Understandably, most of the laws regarding campus sexual assault focus on resources for the victim and supporting survivors of sexual violence. Remember that disciplinary hearings are subject to review by the court. Although the due process requirements do not rise to the level of full constitutional rights afforded to an accused in a criminal trial, the accused is entitled to some semblance of due process.
Due process in college disciplinary proceedings in which the accused student faces expulsion requires (1) a statement of specific charges/grounds that would justify expulsion, and (2) a hearing in which the college disciplinary board hears both sides in considerable detail. However, due process, especially in a hearing where a short suspension is the likely outcome, does not require that the perpetrator be allowed to confront or cross-examine witnesses, or a right of the accused to call witnesses to verify his or her version of an incident (Goss v. Lopez (1975) 419 U.S. 565).
Note that due process protections are more stringent at public institutions than private ones, but even private colleges must abide by what they have promised students in the school’s own policies and procedures. Private schools must follow the minimal requirements set forth in Goss v. Lopez and in Dixon v. Alabama (1961) 294 F2d 150, 160 fn. 3, as well as their own policies.
It is becoming more common for students to appeal a disciplinary decision in the courts. Courts are going to look at the transcript of the disciplinary hearing to determine whether it was fair and the accuser and the accused were afforded due process. It is imperative that colleges and universities understand that a university’s investigation and hearing process cannot be equitable unless it is impartial and affords both the accuser and the accused their due process rights.
Be even-handed and make a clear record of the disciplinary hearing and the panel’s findings. While the laws are primarily drafted to assist victims, campuses are open to liability if they fail to afford either party a fair hearing.
Doing It Right Is a Delicate Balance
Campuses have competing responsibilities in establishing policies, investigating victim complaints and administering disciplinary hearings. It’s a delicate balance that must be achieved: protecting victims, avoiding civil liability under Title IX based on “deliberate indifference” when sexual violence is reported, while conducting an unbiased investigation and being fair to the accused.
This article only touches the surface of college and university obligations for prevention and investigation of sexual violence. It is imperative that colleges and universities provide continuing education for students and training for staff. Academic institutions must also consult with counsel knowledgeable in higher education law to ensure compliance with the numerous obligations imposed by new laws and regulations.
Tracy Warren is a shareholder in Ogletree Deakins’ San Diego office and a member of the firm’s Sports & Entertainment Practice Group. Sarah Williams is an associate in Ogletree Deakins’ San Diego office.
