Wednesday, October 12, 2016

OCR Says Wesley College Violated Rights of Student Accused of Sexual Misconduct

Today the Department of Education's Office for Civil Rights announced an agreement with Wesley College in Delaware that resolves certain violations of Title IX that the college has committed in its response to sexual assault cases. The agreement is unique in that it is the first time the agency has resolved a complaint filed by a student who was accused and disciplined for sexual misconduct. The agency agreed with him that the process the school used to adjudicate his case, and ultimately expel him, was not "equitable" as required by Title IX.

In 2015, someone (or someones) planned and broadcast a live stream video of a male student having sex with a female student at a college fraternity house without the female student's knowledge. Witnesses to the live stream named the accused student as one of those who had orchestrated the live stream, along with other members of his fraternity. Based on these reports, the college immediately issued an interim suspension, without undertaking any kind of preliminary investigation, such as interviewing the accused student. This was in direct violation of the college's own policy, which provides accused students with an opportunity to share their side of the story before an interim suspension can issue. This was also one of several aspects of the college's violation of Title IX's requirement of an equitable response, according to OCR.

Next, an investigator prepared a report for the judicial hearing without interviewing the accused student, an additional policy violation.  Relatedly, the college also skipped a preliminary "conference" that was required by college policy, which would have also given the accused student to tell his side of the story.  Meanwhile, the college failed to provide the accused student with accurate information about the hearing process. This misinformation, combined with the fact that the college failed to hold the preliminary conference, caused the student to believe that the judicial hearing that determined his responsibility was actually the preliminary conference. Owing to this confusion, he did not bring witnesses or otherwise prepare a defense to his hearing.  This collection of errors was cited by OCR as an additional examples of inequitable conduct by the college.

The hearing itself was also plagued with errors.  For one, the college had not provided him with an advance copy of the investigator's report and other key evidence, despite being required by its own policy to make such evidence available to both parties. Another error occurred when the accused student was not allowed to hear the testimony of the other students who had been charged.  The testimony of these students, who named him as a participant in the live-stream planning, was the only evidence that supported the board's finding him responsible.  However, the accused student was denied the opportunity to hear or question their testimony. Finally, OCR noted that only six business days had passed between when the accused student received notice of the charge against him and the college's decision to expel him. The college's own policy contemplates a longer time frame that permits respondents with adequate time to prepare to participate in the process.

In addition to finding the process in the accused student's case to be inequitable, OCR examined the records of other adjudications by the college and found evidence that some of these problems are widespread. Specifically, the college appeared to impose interim suspensions without preliminary investigation in other cases as well, and also had a habit of depriving accused students of the opportunity to present witnesses and other evidence.

OCR even found that the college violated the rights of complainants, such as by failing to provide appropriate interim remedies like counseling and academic services, and by failing to provide complainants with written notice of the outcome. The college also failed to provide sufficient notice and dissemination of its policies, information about the Title IX Coordinator, and information about how to report sexual assault.  In this respect, Wesley College hardly looks  a college that is "overcorrecting" the problem of sexual assault. It is not satisfying the Title IX right of the complainant OR the accused.

I am glad to see that OCR is using its enforcement power to ensure that respondents as well as complainants have the right to an equitable process. Such fundamental fairness is of course important to students who are accused.  It's also important to complainants that respondents are treated fairly, since procedural errors introduce the risk that a punishment could be invalidated on appeal. Moreover, I think it's helpful that OCR is clarifying that Title IX is not to blame when institutions deprive accused students of fair investigations and hearing.  Clearly, Title IX does not require such unfair procedures, and in fact, Title IX is violated when they occur.