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Title IX and due process: ED tells Wesley that accused student not treated fairly

Paul Stoehr Aaron Lacey November 2, 2016

In a rare move, the Department of Education announced on October 12, 2016, its determination that Wesley College in Delaware had violated Title IX by failing to provide appropriate procedural protections to a student accused of sexual misconduct. The Department’s Office of Civil Rights (“OCR”) had opened an investigation after it received a complaint from the mother of a student who was expelled from Wesley for his alleged role in arranging for the live-streaming of a sexual encounter between the student’s fraternity brother and a female student. The accused student maintained that he was not involved — a story that was supported by the female student who was filmed. 

Following its investigation, OCR concluded that Wesley had failed to provide the accused student with the fair and equitable procedure required by both Title IX and the school’s own written policies. In doing so, OCR noted a host of problems with the disciplinary proceedings at issue, to include:  

  • The College failed to interview the accused student before the disciplinary hearing that resulted in his expulsion. The College also did not interview two of the other students alleged to have been involved in the live-streaming scheme. 

  • The College imposed an interim suspension on the accused student without interviewing him or otherwise undertaking any investigation into the veracity of the complaints made against him. 

  • The College failed to provide the accused student a copy of an incident report and other crucial evidence before the hearing. 

  • The accused student was not told that another student had given a statement implicating the accused student. Nor was the accused student given an opportunity to question the other student.  

  • The accused student was not given the opportunity for an informal “educational conference” or other informal resolution opportunity, as provided for in the College’s written policies. In fact, because of the discrepancies between those written policies and the school’s communications with the accused student, the accused student erroneously believed that his final hearing was merely an initial “educational conference.” 

  • The College did not spend sufficient time on its investigation, which also meant that the accused student was not given sufficient time in which to prepare his defense. The final hearing for the accused student took place barely one week after he was notified of the charges and suspended. 

Beyond the problems with the disciplinary proceedings involving this specific incident, OCR also found a number of other Title IX compliance issues at the College. These ranged from the insufficient publication of its Title IX statement to issues with the training of its Title IX team to problems with other disciplinary proceedings over a two-year span. 

The takeaway

OCR’s decision is the latest reminder that, in their zeal to provide justice to students victimized by sexual misconduct or sexual violence, colleges and universities cannot forget about the rights of students accused of such misconduct. Indeed, although the decision is a first from the Department, it is consistent with a number of cases within the last year in which courts have found that schools had deprived students accused of sexual misconduct of constitutional due process during disciplinary proceedings. 

OCR’s decision also highlights how difficult it is for colleges and universities to implement sexual misconduct disciplinary proceedings that are consistent with OCR guidance. For example, while prior OCR guidance emphasizes that investigations should be reasonably prompt, OCR found that Wesley College’s eight-day investigation was in essence too prompt.  Similarly, while OCR emphasizes the need for schools to take interim steps to protect complainants during an investigation, it censured Wesley in this case for imposing such a remedy too quickly and without sufficient justification. 

If you have questions or concerns about these issues, we would be pleased to assist. Thompson Coburn’s Higher Education Practice is well-versed on the intersection of Title IX and due process in the context of sexual misconduct proceedings.  We also can provide advice or training on a wide variety of Title IX-related issues.  

Paul Stoehr, an attorney in the firm’s litigation practice, helps clients manage disputes with the Department of Education on issues of accreditation and alleged violations of federal education regulations. You can reach Paul at (314) 552-6373 or pstoehr@thompsoncoburn.comAaron Lacey is a partner in Thompson Coburn’s Higher Education practice, and editorial director of REGucation, the firm’s higher education blog. You can find Aaron on Twitter (@HigherEdCounsel) and LinkedIn, and reach him at (314) 552-6405 or alacey@thompsoncoburn.com.