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HIGHER EDUCATION LAW [Opinion]

Title IX

The difficulties in protecting an accused’s rights.

By Gaines West, Meg Penrose, and Amy Klam

Imagine you represent a student attending a private college facing criminal charges for sexual assault. Your client notifies you that a related disciplinary complaint has been filed with the school’s Title IX office.1 What advice would you give? Or, imagine that your estate-planning client asks you to represent her son, a public university student facing expulsion for sexual assault allegedly occurring at an off-campus private party. How would you proceed? It is increasingly possible you will encounter these scenarios regardless of what type of law you typically practice. Sexual violence is a serious issue on college campuses. As a result, every Texas lawyer must appreciate the challenges of Title IX representation and the interplay between academic misconduct hearings and the protection of a criminal defendant’s rights.

In 2011, the Department of Education’s Office for Civil Rights, or OCR, issued a “Dear Colleague Letter” revolutionizing Title IX hearings in sexual violence cases.2 Using the letter, rather than the traditional legislative process, the OCR: (1) mandated that Title IX applied to campus policies on sexual violence, (2) required that recipient educational institutions apply a preponderance of the evidence standard when adjudicating sexual violence complaints, and (3) instituted a multitude of protections for complainants. The letter does little to address protections for the due process rights of an accused individual.

Victims of sexual violence deserve to be protected. Yet, as lawyers we must be concerned with the rights of both the complainant and the accused. This is particularly true in the college disciplinary process where allegations of sexual assault now result in quasi-criminal proceedings instituted against an accused individual without any of the usual standards or protections found in criminal proceedings. The Dear Colleague Letter establishes a system where those accused must choose between defending their educational future and preserving their constitutional rights in any future (often pending) criminal prosecution. The goal of this article is to help you recognize the issues created by the Office for Civil Rights letter and to emphasize that the rights of all students involved in the Title IX disciplinary process should be protected.


What Is Title IX?
Title IX is a federal statute mandating that “[n]o person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.”3 The principal objective of Title IX is to prohibit the use of federal funds to discriminate on the basis of gender at educational institutions receiving federal aid. Title IX was not promulgated with a purpose to address sexual harassment or sexual violence, much less to police college disciplinary standards. Title IX was intended to break down gender barriers to education.

Over time, Title IX was expanded to cover sexual harassment. A 1981 Office for Civil Rights memorandum limited the definition of “sexual harassment” to acts committed “by an employee or agent” of the school.4 By 1997, the OCR extended the law’s reach to include sexual assault between students.5 Even so, the U.S. Supreme Court limited an educational institution’s liability for sexual harassment to extreme situations. In Davis v. Monroe County Board of Education, the court found that Title IX educational institutions are “properly held liable in damages only where they are deliberately indifferent to sexual harassment, of which they have actual knowledge, that is so severe, pervasive, and objectively offensive that it can be said to deprive the victims of access to the educational opportunities or benefits provided by the school.”6 The OCR declined to follow the Supreme Court’s standard and asserted that “a single or isolated incident of sexual harassment may, if sufficiently severe, create a hostile environment.”7 Then in April 2011, without following the Administrative Procedure Act notice-and-comment procedures, OCR issued the Dear Colleague Letter.8

 

What Does the Letter Say?9
The Dear Colleague Letter notes that sexual harassment is considered within the parameters of prohibited discrimination. It extends this interpretation to include sexual violence, which is defined as rape, sexual assault, sexual battery, and sexual coercion.10 The letter provides that school officials must police students’ sexual activities regardless of whether they occur on campus, at a school facility, or any other location—including off campus.11 The school’s inquiry “must be prompt, thorough, and impartial.”12 Further, “schools should ensure that steps taken to accord due process rights to the alleged perpetrator do not restrict or unnecessarily delay the Title IX protections for the complainant.”13 Despite the high stakes and complexities in sexual assault cases, a mere 60 calendar days is suggested as the typical investigation period.14

The Office for Civil Rights letter acknowledges that “a number of issues related to an adequate, reliable, and impartial investigation arise in sexual harassment and violence complaints.”15 And, while Title IX itself is silent as to evidentiary standards in sexual violence cases, the Dear Colleague Letter directs schools to use a preponderance of the evidence standard to determine whether sexual assault occurred.16 In justifying its departure from a higher evidentiary standard, the letter states “[g]rievance procedures that use this higher standard are inconsistent with the standard of proof established for violations of the civil rights laws, and are thus not equitable under Title IX.”17 Yet, allegations of sexual violence are not merely civil rights violations. Sexual violence often is a criminal offense too. Defendants in criminal cases are protected by the higher evidentiary standard in that setting because a finding of guilt can result in a loss of liberty and sometimes even the perpetual recognition as a “sexual offender,” not just the loss of educational opportunities.

The letter provides no mechanism for accused individuals, who are presumably considered innocent until proven guilty, to meaningfully participate in the Title IX disciplinary process while simultaneously protecting their liberty interest in a pending criminal matter. In such proceedings, the standard of review is lowered and the protection against self-incrimination is often wholly ignored. The ability to confront one’s accuser is eliminated. The right to counsel is constrained. Despite the serious nature of sexual assault proceedings for both complainants and accused, Title IX’s Dear Colleague Letter evidences procedural bias favoring victims and diminishing (and sometimes even eliminating altogether) the rights of an accused individual. This approach does not adequately ensure gender neutrality in educational opportunities, the goal of Title IX, as far more men are accused of sexual assault than women.

 

Back to Your Client
Since 2011, universities have treated the Dear Colleague Letter as imposing legally binding standards. Title IX violations can hypothetically result in a loss of federal funding for the institution, which provides strong motivation for compliance. In other words, you should expect the letter’s provisions to apply to any client you represent in a college setting.

Consider the following scenario: College students Sue and Bob connect over social media and agree to “hook up.” They meet at Sue’s house off-campus and drink several beers with Sue’s roommate, who is the last person to see them before they sequester to Sue’s room, where they have sex. Bob leaves in the morning before Sue wakes up, assuming that he will never see her again. Months later, Bob receives notice of a sexual assault complaint filed against him. Bob has a short window of time to meet with the college’s Title IX investigator and learn of the evidence against him. Substantial evidence regarding Sue’s mental state and sexual history, items potentially relevant to her decision to file a complaint, is redacted because it is deemed by the university as confidential under federal law.

What would you do?

If you are a criminal attorney, you will be concerned about potential future criminal proceedings. Your advice that Bob not give any statement, to preserve his Fifth Amendment rights, could result in Bob being found culpable under the lowered preponderance of the evidence standard. You will not be allowed to cross-examine Sue, and usually, in a hearing you will only be allowed to sit as a passive observer. How can you protect Bob’s rights in both the academic proceedings and his criminal case?

If you are a civil attorney you might think that Bob should fully participate in the Title IX proceeding, including giving testimony because, after all, you conclude this is “just a school disciplinary issue.” Bob wants to stay in college. However, the results of the school investigation may trigger the filing of a criminal charge against Bob, and the results of the college investigation will be admissible in court. What could you have done to avoid this result?

Under either scenario, Bob faces a legal quagmire. Judge Edith H. Jones of the U.S. Court of Appeals for the 5th Circuit recently acknowledged these concerns:

I do not take the position that the students [in a disciplinary hearing] must be afforded the same procedural protections as criminal defendants. What drives my concern is the close association between the charges leveled against them and actual criminal charges. Sexual assault is not plagiarism, cheating, or vandalism of university property. Its ramifications are more longlasting and stigmatizing in today’s society.18

The Dear Colleague Letter presumes that the rights of accusers and the accused cannot be simultaneously protected. As Title IX disciplinary adjudication involves potential criminal conduct, the issue merits serious legal reflection.19 Texas lawyers must appreciate Title IX to ensure that any clients accused of sexual assault receive the best protection possible in legal proceedings against them, whether those take the form of school disciplinary hearings, criminal prosecution, or both. The interplay between Fifth Amendment rights and protections and, up to now,20 the federal government’s clear pronouncement in the Dear Colleague Letter for schools to vigorously prosecute allegations of sexual violence, will continue to play out in our state and federal courts far into the future.

Getting help from a lawyer experienced in higher education law, or criminal law (or both), may be better than going it on your own.TBJ

Notes

1. “Title IX” refers to Title IX of the Educational Amendments of 1972, 20 U.S.C. § 1681 (2012).

2. Russlynn Ali, Dear Colleague Letter, U.S. Dep’t of Educ., Office for Civil Rights, (Apr. 4, 2011) http://www2.ed.gov/print/about/offices/list/ocr/letters/colleague-201104.html.

3. 20 U.S.C. § 1681(a) (2012).

4. KC Johnson & Stuart Taylor Jr., The Campus Rape Frenzy: The Attack on Due Process at America’s Universities, 24-25 (2017).

5. See Sexual Harassment Guidance: Harassment of Students by School Employees, Other Students, or Third Parties, U.S. Dep’t of Educ., Office for Civil Rights, (March 1997) http://www2.ed.gov/about/offices/list/ocr/docs/sexhar01.html.

6. Davis v. Monroe County Bd. of Educ., 526 U.S. 629, 650, 119 S. Ct. 1661, 1675 (1999).

7. U.S. Dep’t of Educ., Office for Civil Rights, Revised Sexual Harassment Guidance: Harassment of Students by School Employees, Other Students, or Third Parties (January 19, 2001) http://www2.ed.gov/about/offices/list/ocr/docs/shguide.pdf.

8. Administrative Procedure Act, 5 U.S.C. § 553.

9. For a thorough discussion regarding lack of due process protections afforded to accused students under the DCL, see, e.g., Campus Rape Frenzy, supra note 4; Stephen Henrick, A Hostile Environment for Student Defendants: Title IX and Sexual Assault on College Campuses, 40 N. Ky. L. Rev. 49 (2013).

10. See id. at 1-2.

11. See id. at 4.

12. Id. at 5.

13. Id. at 12.

14. See id.

15. Id. at 9.

16. See id. at 10-11.

17. Id. at 11.

18. Plummer v. University of Houston, No. 15-20350, www.ca5.uscourts.gov/opinions/pub/15/15-20350-CV0.pdf at *28 (5th Cir. June 23, 2017) (2-1 decision) (Jones, J., dissenting).

19. See also id. at *20. (“The University policies used in this case largely tracked the DOE guidance letter. For this reason, it is a hollow claim that the procedures are owed particular deference as products of “institutions of higher learning.” These policies were developed by bureaucrats in the U.S. Department of Education and thrust upon educators with a transparent threat of withholding federal funding ... . [T]he procedures raise serious questions about the sufficiency of the ... procedures to adjudicate fully and fairly charges of sexual misconduct that will affect the students’ future lives as surely as criminal convictions.”)

20. Many have expected Betsy DeVos, President Donald Trump’s new education secretary, to retract or limit the DCL, but, as of the writing of this article, no change has come. Even if the DCL is withdrawn or changed, many expect most universities to not change their Title IX hearing processes currently in place.

Gaines West

GAINES WEST is a partner in West, Webb, Allbritton & Gentry in College Station, and in Austin (by appointment).
Meg Penrose

MEG PENROSE is a professor at Texas A&M University School of Law teaching criminal procedure, international human rights, civil procedure, and constitutional law.
Amy Klam

AMY KLAM is an associate attorney with West, Webb, Allbritton & Gentry in College Station.

The views expressed in this article are those of the authors and do not necessarily represent the policy, position, or views of, and should not be attributed to, the State Bar of Texas.

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