There has been considerable controversy regarding Education Secretary DeVos recent meetings with representatives of organizations advocating on behalf of men accused of sexual offenses on college campuses. Education Secretary Betsy DeVos said she is "returning" the Office for Civil Rights "to its role as a neutral, impartial, investigative agency." Politico, July 16, 2017.
Unfortunately, the rhetoric surrounding the issue of campus sexual assault is extremely polarized and tends to distort the issues surrounding the investigation and prosecution of alleged sexual offenses on college campuses. The fact that Secretary DeVos has agreed to review the Department of Education policies regarding enforcement of Title IX and to meet with groups advocating on behalf of accused students has been characterized as being insensitive to the issue of campus sexual assault.
Clearly, any allegation of the commission of a sexual offense should be properly and fairly investigated and, if the offense is proven, suspension or expulsion of the offending student is appropriate. However, in light of the severe consequences flowing from a long term suspension or expulsion, the disciplinary procedures should be fair.
The complaints raised by organizations advocating for accused students are that procedures adopted by Colleges and Universities for investigating and prosecuting allegations have resulted in an unfair process that does not provide due process to the accused. Many colleges adopted special procedures for investigating and prosecuting sex offenses as a result of an advisory letter from the U.S. Department of Education in April 2011. The so-called “Dear Colleague” letter, sent to more than 7,000 colleges that receive federal money told them to adopt the lowest standard of proof (preponderance of the evidence) in sexual assault cases. It also directed the colleges to allow alleged victims to appeal findings adverse to them and to discourage or eliminate the ability of the accused or his/her representative to cross-examine the accuser.
In Arizona, the Board of Regents adopted all of the 2011 recommendations of the U.S. Department of Education. The University of Arizona actually takes if further by not providing accused students with the statements of their accuser or the names of witnesses the University may rely on. The University also gives the complaining witnesses the right to not to appear at the hearing at all.
The lack of due process is further compromised because the investigators – who also act as prosecutors and adjudicators – do not have the training or experience that law enforcement detectives have to investigate sex offenses. This is particularly significant because many of the accusations of sexual misconduct are only reported to the University and not to the police so there is no professional police investigation.
The procedures the University of Arizona has adopted for sexual assault cases do not apply to other serious code of conduct violations which could result in suspension or expulsion. Those procedures allow for confrontation and cross-examination. The Title IX procedures adopted by the U of A provide less procedural protection than is provided for in driver's license suspension or revocation hearings.
As a result of the “Dear Colleague” procedures implemented by many colleges there have been a number of successful court challenges to the failure of the colleges to provide due process to the accused student.
Sherick & Bleier has extensive experience representing students on serious disciplinary matters at the University of Arizona. Please call if you need information or legal representation regarding Code of Conduct investigations or prosecutions.