Lack of Due Process a Problem in Addressing Sexual Misconduct

Tim Burke, Manley Burke, tburke@manley.com

The Safe Campus and Fair Campus bills, while supported by both the National Panhellenic Conference and the North American Intrafraternity Conference, have drawn mixed reviews.  The National Association of Scholars and the National District Attorneys Association have both endorsed the Safe Campus Act.  Other elements of the higher education community and some women’s advocate groups have stated opposition.  But developing case law strongly suggests that the bills’ due process provisions would help address the frequent problems with the myriad of different disciplinary processes that exist on American campuses.  All too frequently, the due process rights guaranteed by the Constitution are not provided.  Here are two recent examples.

On July 10, 2015, the Superior Court of California for the County of San Diego issued an order in the case of Doe v. Regents of the University of California San Diego,¹ which overturned the University’s decision to suspend an individual accused of sexual assault.  The court began its analysis indicating that while “it respects the University’s determination to address sexual abuse and violence on its campus, after reviewing the administrative record, it finds that in this particular case, the hearing against petitioner was unfair.”

The court criticized several aspects of the process.  First, the petitioner was required to submit written questions for cross-examination to the hearing panel chair, but the chair asked only nine of the 32 questions submitted.  The court stated “the limiting of the questions in this case curtailed the right of confrontation crucial to any definition of a fair hearing.”  The court also criticized the reliance of the panel on a report by the University’s Office for the Prevention of Harassment and Discrimination (OPHD) when no one from that office was present to testify or subject to cross-examination.  An additional problem with the OPHD Report was that it relied on interviews of some 14 witnesses whose statements were not even provided to the petitioner.  The university hearing panel accepted the conclusion of the OPHD Report that “based upon the totality of the circumstances and the evidence presented, I find it more likely than not that Mr. Doe ignored Ms. Roe’s objections to sexual activity in violation of the student sex offense policy.”  In criticizing the deference to an investigator who was not even present at the hearing, the court borrowed language from Ciechon v. City of Chicago, (7^th Cir. 1982), 686 F.2d 511, 517, noting that “due process requires that a hearing … be a real one, not a sham or a pretense.”

The court also found the penalty imposed by the University to have been unfair.  Initially, the penalty was limited to a suspension for one quarter.  But when petitioner appealed the decision, a university dean, without explanation, increased the suspension time to one year.  When petitioner appealed to the final appellate body, his suspension was extended to a year and a quarter, again without any reasoning for the increased sanctions.  The court concludes that “it appears the increased sanctions are punitive towards petitioner for appealing the decision of the panel.”

In another recent case, Mock v. University of Tennessee at Chattanooga², (“UTC”), the Chancery Court of Davidson County, Tennessee, reversed a UTC decision which resulted in Mock’s expulsion for sexual assault.  Much of the dispute in that case related to the question of consent and whether or not the parties could consent when they both had consumed a large amount of alcohol.  On campus, an administrative law judge conducted a hearing and initially issued a decision making 49 specific findings of fact concluding that the University had not met its burden of proof, by a preponderance of the evidence, that the complaining party was incapable of having consented to having sex.  The administrative law judge dismissed the charges against Mr. Mock.

The complaining party then personally met with the UTC Chancellor.  The University sought reconsideration from the law judge, who then, without changing any of her findings of fact, reversed her conclusions and held that the University had proved by a preponderance of the evidence that the complainant never consented to sexual activity and ordered Mr. Mock be dismissed from UTC.

Mock sought to have the Chancellor recuse himself from considering his campus appeal because of the ex parte communication the Chancellor had had with the complainant.  The Chancellor refused and ordered Mock’s expulsion.

The litigation then commenced.  Mock initially obtained an injunction which allowed him to complete his exams for the 2014 Fall Semester and he was subsequently allowed to enroll for the next semester.  He was denied access to his scholarship or his varsity wrestling activities.

In reviewing the record, the court was particularly critical of the fact that the University shifted the burden of proof to the accused who must then prove that consent had been given.  The court stated that “this procedure is flawed and untenable if due process is to be afforded the accused.”

The court noted that:

“In that initial order, the ALJ stated that charges of sexual assault are taken very seriously and that the case was very troubling because a result based solely on the facts presented at the hearing may or may not reflect what truly happened.  She also stated that while such cases can be brutal for a victim to endure, the rights of the accused must also be ensured and that it was imperative to UTC to meet its burden of proof in such cases.”

The court ultimately concluded that the University’s decision to expel Mock was arbitrary and capricious, and ordered the re-instatement of the first order of the ALJ dismissing the charges against Mock.

There will be controversy over the Safe Campus and Fair Campus Acts, particularly with regard to the provisions in the Safe Campus Act that limit a university’s ability to investigate a complaint if the complainant wants the matter referred to the police and prohibits disciplinary action if the complainant does not want the matter referred to police.  But, as one of the bills’ harshest critics has noted:

“There are, indeed, serious due process and transparency issues with the way some schools handle adjudication of sexual assault and a handful of male students (and many more female students) have been treated horrifically.  There is no question that adjudication processes should be more transparent, consistent and fair….”³

1 Doe v. Regents of the University of California San Diego, Case No. 37-2015-00010549-CU-WM-CTL, decided July 10, 2015.

2 Mock v. University of Tennessee at Chattanooga, Chancer Report of Davidson County, Tennessee, 20^th Judicial District, Part II, Case No. 14-1687-II, decided August 4, 2015.

Making it harder to punish campus rapists wont’ stop campus rape by Jill Fillpovic, August 10, 2015, https://www.washingtonpost.con/posteverything/wp/2015/08/10