The Rights of Accused Students

Michael Allen & Joshua Adam Engel

The national controversy about the responses of colleges and universities to sexual assaults on campuses continues to grow.  After years of criticism for being too lax on campus sexual assault, on April 11, 2011, the U.S. Education Department’s Office of Civil Rights sent a  “Dear Colleague” to colleges and universities.¹  The Dear Colleague Letter indicated that, in order to comply with Title IX, colleges and Universities must have transparent, prompt procedures to investigate and resolve complaints of sexual misconduct.  Most notably, the Dear Colleague Letter required schools to adopt a relatively low standard of proof— “more likely than not” —in cases involving sexual misconduct, including assault.²

Concerns for the rights of the accused are also growing.  In the January 2015 issue of this Newsletter, Micah Karmass wrote about how the allegations of a terrible sexual assault at the University of Virginia, and the subsequent retraction of the story, “demonstrates the dangers of punishments before providing for the right to fairly defend against the allegations.”  The Federal Government, through the Department of Education, has been using Title IX to pressure colleges and universities to aggressively pursue investigations of sexual assaults on campuses. The assistant secretary of education who heads the Education Department’s Office for Civil Rights, told college officials attending a conference that schools need to make “radical” change.³   She later told a separate conference, “I will go to enforcement, and I am prepared to withhold federal funds.”⁴

Against this background, most schools have adopted or modified sexual harassment or sexual misconduct policies.  These policies call for new procedures for investigating and resolving allegations of sexual assault.  Instead of implementing policies aimed at finding the truth after full and fair investigations and hearings, many schools have adopted policies that more closely resemble witch hunts aimed at making examples of accused students to show the Department of Education that school is “tough” on allegations of sexual assault.

As attorneys, we have been approached by dozens of students from schools across the nation facing disciplinary proceedings.  Most of these matters have been resolved quietly; some have led to litigation.  What they all have in common is that the students believe that the procedures did not afford them fundamental fairness.

Let’s be clear: sexual assault on college campuses is a real problem that requires a real solution.  The authors of this article are former prosecutors who have sent many men to prison for sex offenses.  As former prosecutors, we are committed to providing adequate due process protections to those accused of sexual assault because, in part, these protections enhance the credibility of the proceedings and ultimately serve to provide justice for victims of sexual assault.  As prosecutors, we were committed to using fair procedures and adhering to long-standing rules and protections of the rights of the accused; we believe that these are necessary to assure the dignity of all participants in the process, both the accused and the victim.

A student who faces disciplinary sanctions is entitled to a full and fair hearing before being disciplined.  This should not be controversial. The April 4, 2011 Dear Colleague Letter specifically states that schools are obligated to protect the due process rights of students accused of sexual assault. For example, on page 12 of the Dear Colleague Letter, the Department of Education states, “Public and state-supported schools must provide due process to the alleged perpetrator.” And, on page 22, the Department notes “The rights established under Title IX must be interpreted consistent with any federally guaranteed due process rights involved in a complaint proceeding.” The Department of Education has also recognized that due process rights include the ability to present evidence.

What does a full and fair process look like?   The hearings do not need to resemble criminal trials, and not all rights guaranteed by the Constitution in a criminal trial need to be present.  Yet, a full and fair process that allows students a meaningful opportunity to be heard prior to the imposition of sanctions should include a number of traditional and time-tested protections that lead to reliable outcomes.

• A full and fair investigation.  The initial investigation by a school should be conducted by an unbiased person with significant investigatory experience.  Many investigators lack law enforcement experience and are, thus, ill equipped to resolve sensitive issues with conflicting versions of events.  No matter how well done, training on Title IX investigations are not a substitute for law enforcement experience.⁵
• The assistance of counsel. Very few college students have the ability to sort through evidence and present a coherent case.  In many schools, alleged victims are provided with “advocates” who are experienced in the disciplinary process while the accused, who likely cannot afford an attorney, is left to face the process alone.  Attorneys do not need to play an active role in the presentation of evidence, but the role of attorneys in the truth seeking process can be valuable.
• Written rules and procedures. Most school disciplinary hearing panels lack rules and procedures for basic aspects of the process, such as rules on the admissibility of evidence.  Rules should be aimed at assuring that the panels receive only reliable and not unduly prejudicial evidence.  Hearsay is acceptable, but only if there are sufficient indicia of reliability and a student has the ability to cross-examine the speaker.  Panel members also need to be instructed on basic concepts such as the “presumption of innocence” and the “burden of proof.”⁶
• An unbiased and well trained panel. A legal background should be a requirement for the chair of any panel.  We have seen too many panels led by instructors with no legal background; the result is inconsistency and unfairness.  In addition, in many instances, panel members are self-selected because they have an agenda.  Schools need to take steps to assure that panel members are dedicated to implementing the rules of the school without preconceived conceptions of doing “what is right.”
• The ability to effectively cross-examine witnesses. While a school does not need to provide unlimited cross-examination, the opportunity to confront and cross-examine witnesses is essential when the information supplied by those witnesses is the reason for the imposition of discipline.  School disciplinary proceedings can include more extensive cross-examination if the case had resolved itself into a problem of credibility as in many “he-said, she-said” cases, while still excluding irrelevant or harassing questions, such as about a student’s sexual history.

Schools need to look at these hearings as educational opportunities.  A full and fair process prior to the imposition of punishments is at the core of liberal democracy and the values of educational institutions.   The history departments of schools should be able to provide ample examples of societies that sacrificed individual freedoms in order to more effectively punish perceived offenders.  Certainly the law schools at our leadings institutions should be able to stand firmly behind the proposition that fundamental fairness and the ability to punish offenders are not incompatible.

Michael K. Allen is a former Cincinnati Police officer and the former elected Hamilton County, Ohio Prosecutor.  Joshua Adam Engel, a Harvard Law Graduate, served as an Assistant Prosecutor in Ohio and Massachusetts.  Together, at Michael K. Allen & Associates, they have developed a national practice representing students in or challenging the results of university disciplinary proceedings.

1 Available at:  http://www2.ed.gov/about/offices/list/ocr/letters/colleague-201104.pdf.

2 This standard of proof is also called “preponderance of the evidence.”  In one case, a school administrator described this as “50% and a feather.”  Note that the concept of standard of proof is different from the concept of burden of proof.  The burden of proof refers to which side must make a case, and is tied to the concept that a student is “innocent until proven guilty.”

3 Sander, Colleges Are Reminded of Federal Eye on Handling of Sexual-Assault Cases, Chronicle of Higher Education, February 11, 2014.

4 NPR, How Campus Sexual Assaults Came To Command New Attention, August 12, 2014.

5 The Department of Education, in the Dear Colleague letter, page 10, states, “Schools should not wait for the conclusion of a criminal investigation or criminal proceeding to begin their own Title IX investigation.” In our view this creates a dangerous problem for students facing simultaneous criminal and school investigations.  Students have a right to remain silent in a criminal investigation, yet may be compelled to provide a statement to a school investigator in order to avoid discipline.  The better approach, which respects the Constitutional right of students to remain silent, is to allow the criminal investigation to be completed prior to conducting a school investigation.

6 Schools, of course, need to follow their own rules, not matter how insufficient.  In a number of instances, we are aware that hearing panels are either unaware of the existing rules or do not follow the rules.