How colleges investigate sexual assault on campus

(credit: Senator Claire McCaskill)

The case of Brock Turner, the Stanford swimmer recently found guilty of sexual assault, has brought renewed attention to the issue of sexual assault on college campuses. Turner was prosecuted in California criminal court for sexually assaulting an unconscious woman on Stanford’s campus. The jury found him guilty of three felony offenses, and the judge sentenced him to a controversial six months in prison.

But not all cases on college campuses become criminal cases; some are handled by schools. And recently, the U.S. Department of Education’s Office of Civil Rights (OCR) has scrutinized over 100 universities—including Stanford—for mishandling sexual assault cases. As a result, OCR issued new guidelines for schools to follow, and many revised their procedures accordingly. Overall, these efforts, combined with improvements in reporting under the Clery Act, have helped change attitudes toward sexual violence and protect victims. But some argue that these new systems now “over-correct” and fail to safeguard the rights of students accused of sexual assault—a serious accusation with often devastating consequences. This post explores some of the legal issues underlying these controversies.

Sexual assault as sex discrimination

The OCR enforces civil rights laws prohibiting discrimination in programs that receive federal funding, including universities. Sex discrimination is prohibited by Title IX of the Education Amendments of 1972. The U.S. Court of Appeals for the Second Circuit, in Alexander v. Yale (1980), and the U.S. Supreme Court, in cases like David v. Monroe County Board of Education (1999), established that acts of sexual harassment or violence constitute sex discrimination under Title IX.

Adopting this interpretation, OCR issued guidelines for Title IX schools to follow to maintain their federal funding. In 2011, OCR issued an updated guidance reiterating that schools must take “immediate and effective steps to end sexual harassment and sexual violence” if a school knows or reasonably should know of student harassment creating a hostile environment. But without providing opportunity for notice or comment, OCR mandated several procedural requirements, such as a “preponderance of the evidence” standard for adjudicating cases. The guidance did state that schools “must provide due process to the alleged perpetrator.” Whether that happens in practice, though, is the subject of debate.

Due process issues in campus sexual assault cases

In a criminal trial, constitutional provisions such as the Fifth Amendment’s protection against self-incrimination and the Sixth Amendment’s right to a speedy and public trial ensure the rights of the accused and the integrity of the criminal justice process. Most constitutional protections for criminal defendants also have been incorporated to apply against the states.

During a school investigation, however, constitutional protections may not apply with full force. Procedural protections often depend on the particular situation. As the Foundation for Individual Rights in Education (FIRE) explains: “In general, the more serious the charge and potential penalty, the greater the protections that must be given to you.” This sliding scale explains why students in campus disciplinary hearings don’t have the same rights as criminal defendants. But other protections do come into play. For instance, public schools students are protected by the Fourteenth Amendment, and may not be deprived of “life, liberty, or property, without due process of law.”

The Supreme Court, in Goss v. Lopez (1975), held that public school students must be afforded due process before being deprived of their education. States do not have to provide a free public education, but those that do grant to students a legitimate entitlement to a public education that constitutes a property interest. That interest is protected by the Due Process Clause and “may not be taken away for misconduct without adherence to the minimum procedures required by that Clause”—namely, notice and an opportunity to be heard. Due process also forbids arbitrary deprivations of liberty, and as the Court held in Wisconsin v. Constantineau (1971), a person has a liberty interest in protecting his good name and reputation. As Goss noted, disciplinary action brought by a school can damage students’ reputation, their “standing with their fellow pupils and their teachers as well as interfere with later opportunities for higher education and employment.” In Goss, a ten-day suspension from public school was not a de minimis punishment and could not be imposed without due process protection—which meant that the student must “be given oral or written notice of the charges against him and, if he denies them, an explanation of the evidence the authorities have and an opportunity to present his version.” (Private schools, by contrast, have more leeway to conduct investigations and to suspend or expel students.)

Some warn that the “dangerous procedural short circuits” initiated by the OCR guidance can violate these due process rights. The case of Drew Sterrett at the University of Michigan is one example. Sterrett had a sexual encounter with a fellow classmate who later accused him of sexual assault. In investigating the claim, the school did not provide him with any notice of the charges in writing and did not allow him to question his accuser or know the details of any witnesses against him. He was suspended for several years. Sterrett sued the University for violating his rights under the Fourteenth Amendment. After mandatory mediation with the school, the finding was overturned and his transcript was cleared of all disciplinary action.

As Harvard law professor Elizabeth Bartholet has argued, by denying the accused basic due process protections, these policies can create “a backlash against the very cause they are fighting for.” Bartholet and other faculty members objected to Harvard’s issuance of a new sexual harassment policy in 2014 after an OCR investigation. In an op-ed, the professors urged Harvard to rethink the policy, arguing that the new procedures lacked “the most basic elements of fairness and due process” and were “overwhelmingly stacked against the accused.”

Yet others support the tough approach. As Dana Bolger, founding co-director of Know Your IX, a student campaign against gender violence, explained at a Senate hearing: “This intolerable status quo—in which survivors of gender-based violence are still unable to access their right to education—demands a strong federal response.”

Other options

A pending bill in Congress, the Safe Campus Act, proposes an alternative solution: requiring schools to refer all cases to the criminal justice system. Schools instead could focus resources on working to prevent sexual assault.

But even in criminal court, sexual assault cases are complicated, often involving conflicting stories, little evidence, and no witnesses. (In the Turner case, there actually were eyewitnesses—two graduate students who intervened.) Janet Napolitano has argued that, “[r]ather than pushing institutions to become surrogates for the criminal justice system,” policymakers should ask if “more work should be done to improve that system’s handling and prosecution of sexual assault cases.” Others point out that campus adjudication is not necessarily a substitute or a parallel to the criminal justice system, but rather a “separate antidiscrimination right protecting students’ access to educational opportunities at their schools.”

In either respect, both courts and universities must try to decide each case fairly, to balance the rights of the accused with the rights of the victim.

Lana Ulrich is associate in-house counsel at the National Constitution Center.

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