Title IX and Equitable Investigations for the Accused

Amy Hebbeler, Manley Burke, amy.hebbeler@manleyburke.com

Both the complainant and the accused deserves an equitable investigation.  In regards to Title IX, it is rare that an investigation is prompted by the accused and more importantly, the accused is almost never successful. That is what makes the decision involving Wesley College so unique and indicative of possibly more protections and equity for the accused.

Four fraternity members were expelled from Wesley College in Delaware after they were accused of filming and live streaming a man and woman having sex without the woman’s knowledge. The issue for Wesley College was not the fact that it expelled the students, but it was the process that it utilized that raised violations under Title IX. The four members were notified they were being charged and suspended in a day, and they were expelled within a week. Further, one of the four expelled students claimed that he was innocent and did not participate in the incident. His innocence was confirmed by the victim before and after his expulsion. Yet, Wesley College still expelled him and denied his request of his intent to appeal.

According to the letter to Wesley College from the Office for Civil Rights, “[Wesley] College failed to implement several provisions of its Title IX policies and procedures during the processing of the complaint involving the accused student, including when it suspended, and later expelled him for sexual misconduct. [Wesley] College thereby denied the accused Student procedural protections to which he was entitled under Title IX . . .”  The letter cited several incidences that violated the students’  Title IX rights and Wesley College’s policies and procedures. First, Wesley College did not interview the students and failed to share information with the students. Further, an interim suspension was imposed the same day the incident was reported and the student was not able to challenge the suspension before it occurred. The timing was also an issue. The period between the incident report and the hearing was less than a week, which may not have allowed sufficient time for the student to participate. Finally, Wesley College’s policy and procedures were to afford the accused multiple resolution options that it did not actually offer to the accused students. It is important to note that all of these incidents were against Wesley College’s policy and procedure. Based mainly on this evidence, OCR found that Wesley College “failed to provide an equitable investigation and resolution of the complaint involving the accused Student . . .”

Some have stated that this may indicate the pendulum swinging in the opposite direction to afford more protections for the accused. On the other hand, the outrageousness of the incident, particularly with the accused student still being expelled after the victim spoke on behalf of the student’s innocence, may keep this case as an outlier. We will keep you updated on further developments on this issue.

1. Jake New, A Title IX Win for Accused Students, Inside Higher Ed (October 13, 2016), https://www.insidehighered.com/news/2016/10/13/us-says-wesley-college-violated-rights-students-punished-over-sexual-misconduct.
2. Letter from Beth Gellman-Beer, Supervisory Attorney OCR Philadelphia, to Robert E. Clark II, President Wesley College (October 12, 2016) (on file at http://www2.ed.gov/about/offices/list/ocr/docs/investigations/more/03152329-a.pdf?utm_content=&utm_medium=email&utm_name=&utm_source=govdelivery&utm_term=).