The federal government, primarily the U.S. Department of Education's Office for Civil Rights, has provided guidance in recent years regarding how colleges and universities must respond to sexual misconduct if they hope to stay in compliance with Title IX of the Education Amendments of 1972. This guidance includes:
OCR's 2011 Dear Colleague letter regarding sexual misconduct;
OCR's 2014 questions and answers document regarding sexual misconduct;
OCR's 2015 Dear Colleague letter regarding the role of Title IX coordinators;
The Violence Against Women Act amendments; and
The You're Not Alone campaign led by the Obama administration and other resources from the White House.
As a result of such extensive guidance, the frequency of complaints filed on college campuses has increased significantly and the standard for investigating these complaints has also risen. Not surprisingly, many more people have been found responsible for acts of sexual misconduct on campuses in recent years, and the sanctions for the accused can be severe: the loss of leadership opportunities or the ability to participate in college activities, suspension and expulsion.
Yet while the federal government's guidance is extensive, it is hardly exhaustive. And although some people chafe at what they view as federal overreach into serious matters that they think should best be left to law enforcement and the court system, others view the federal government’s role as only the start of a process that will heighten the dialogue around sexual misconduct (and the often accompanying substance abuse) that commonly occurs on college campuses.
For its part, the OCR -- the primary federal agency enforcing much of the guidance -- has largely refused to provide a template of an acceptable sexual misconduct policy that would satisfy the varied criteria that have been set forth. (Notably, in June, OCR did state, in reaching an agreement with Occidental College to resolve an ongoing sexual violence and harassment complaint investigation, that the college's current policy “concerning sexual misconduct and procedures for resolving complaints and reports of sexual misconduct as written provides a prompt and equitable resolution of complaints of sexual harassment, including sexual violence.”)
It is not surprising, then, that individual policies and procedures for dealing with allegations of sexual misconduct vary widely by institution. Increased findings of responsibility for sexual misconduct have also led to an increase in private litigation filed by students accused of sexual misconduct, who often contend that their institutions' sexual misconduct policies and procedures are unfair to them. More specifically, many accused students argue that campus proceedings do not allow for meaningful due process.
For example, in Doe v. the Board of Regents of the University System of Georgia, an expelled student claimed that the Georgia Institute of Technology violated his federal due-process and equal-protection rights and Title IX of the Education Amendments of 1972; he also alleged state law claims of breach of contract. In another recent case, Doe v. Rector and Visitors of George Mason University, a student filed suit after an assistant dean reversed an administrative panel's determination that he was not responsible for sexual assault and expelled him. The court determined that the assistant dean violated the student's right to due process, as he held the student responsible for behavior for which he was not charged and met with several members of the disciplinary panel separately without notice to the student.
In sum, the federal government and the courts have presented a challenging maze for institutions to navigate in responding to sexual misconduct on campuses in recent years. Adding to that challenge, the states are beginning to enter the fray by drafting their own legislation or governing policies. Some of the early versions of various state efforts are consistent with the federal guidance and recent court cases, and some are not. Georgia is one of the early states to implement a policy that went into effect on July 1, 2016, so their policy is worth review and consideration in the broader discussion about sexual misconduct at colleges and universities, the role of the federal and now state government, and how institutions respond to sexual misconduct both through their policies and in practice.
Additional Processes for Students
As a result of the new sexual misconduct policy of the Board of Regents of the University System of Georgia, all Georgia public colleges and universities must ensure that their sexual misconduct policies provide additional requirements for investigations and additional process for the students -- particularly for the accused -- involved in these cases. For example, before taking any interim measures that might involve a student’s immediate suspension from the campus pending an investigation, the regents’ policy requires the institution’s Title IX coordinator to provide the respondent (or the accused) with an initial opportunity to respond to allegations and "to make all reasonable efforts to give the respondent the opportunity to be heard on whether his or her presence on campus poses a danger."
Also relatively distinct to the regents’ policy, a respondent has a right to remain silent without an automatic adverse inference being drawn against him or her during the institution's adjudication process. This change is an important one. Many students who also have pending criminal charges are often advised by their lawyers to remain silent or not participate at all during the institutional proceeding so as to not provide a record that can be used in future criminal proceedings. As a result, the institutional investigation often becomes one-sided.
In addition to the points referenced above, the following are some additional notable requirements of the regents’ policy (some verbatim, others summarized):
The investigator is required to keep records of any proffered witnesses not interviewed, along with a brief written explanation.
At the conclusion of the investigation, the investigator will issue to the parties a written report setting forth charges and possible sanctions, as well as an explanation of the evidence against the respondent.
Parties will have at least three business days to respond to the report in writing. The respondent's written response should outline his or her plea in response to the charge, and where applicable, his or her defense(s), and the facts, witnesses and documents in support.
The investigator then shall, as necessary, conduct further investigation and update the report as warranted by the response(s), and will update the report as necessary.
The investigator may testify as a witness before the panel regarding the investigation and findings, but shall otherwise have no part in the hearing process and shall not attempt to otherwise influence the hearing panel outside of providing testimony during the hearing.
Both parties shall have the right to indirectly confront any witness, including the other party, by submitting written questions to the Title IX coordinator. Advisers may actively assist in drafting questions.
The hearing panel must ask the questions as written and will limit questions only if they are unrelated to determining the veracity of the charge, erring on the side of asking all submitted questions and documenting the reason for not asking any particular questions.
There is a preponderance-of-evidence standard of review, but any decision to suspend or to expel a student must also be supported by substantial evidence at the hearing.
Each party shall have three business days to submit a written statement to supplement the notice of the complaint and the verbal interview, including any response by the respondent, who has the right to admit or deny the allegations and set forth any defense with facts, witnesses and documents.
There are three available administrative appeals: (1) to the vice president of student affairs, (2) to the president and (3) to the Board of Regents.
Appeals can be made on any of these limited grounds: (1) consideration of new information because such was not known or knowable to the person appealing during the time of the hearing, (2) procedural error within the hearing process substantially impacting fairness and (3) a finding inconsistent with the weight of the information.
The regents’ policy, among other things, requires Georgia's public colleges and universities to adhere to minimum procedural safeguards, many of which are necessary to satisfy due process. At the same time, there are challenges with maintaining compliance with federal guidelines. For example, what is the appropriate disposition of an accused student, either as an interim measure or final outcome, when there has been an alleged rape, yet the only evidence is the testimony of the complainant and the accused?
While the federal guidelines require colleges and universities to allow, among several alternatives, suspension or expulsion as a means to create a safe and nonthreatening environment for the alleged victim, the regents’ policy requires "substantial evidence" for any decision to suspend or to expel a student. Even if the accused's testimony -- the only other evidence besides the complainant's testimony in this scenario -- is not credible, such lack of credibility might be sufficient to conclude a rape occurred but not be substantial evidence to justify a decision to suspend or expel the student. This hybrid evidentiary standard may trigger challenges from OCR.
Also, actually implementing an accused student's right of silence as provided in the regents’ policy might also prove to be somewhat challenging, given the federally mandated preponderance-of-evidence standard of proof in college proceedings -- a significantly lower burden of proof than the standard applied in criminal proceedings. It may still require a finding that the accused was responsible even if a shade of doubt remains. Best investigative practices require that institutions conduct their own thorough investigations regardless of whether a respondent participates, and that commonly leads to other witnesses who might exculpate a respondent or at least shed some doubt on the complainant’s allegations. But often these cases involve issues of consent in relations that are commonly one-on-one and do not have many other exculpatory witnesses. Campus hearing panels considering such evidence might need additional guidance.
In sum, the regents’ policy seeks to implement an even more rigorous set of requirements than the federal guidance, including some requirements that might ultimately prove to be counter to the government's guidance in certain areas. As these cases continue to be litigated in the courts, and as the states and the federal government continue to exchange guidance regarding how institutions should respond to sexual misconduct, college and university leaders must read the tea leaves from several different sources to navigate a path that, above all, treats their community with respect and ensures the community’s safety.
Vernon Strickland is an associate at the law firm Holland & Knight. Phil Catanzano is senior counsel there.
George Washington University has settled for an undisclosed amount with a cancer biologist who alleged it mishandled an academic misconduct case against him, Chemistry World reported. The professor, Rakesh Kumar, sued the university for $8 million last year, saying he lost his chairmanship of the Department of Biochemistry and Molecular Medicine outside of proper protocols. That followed the retraction of three of his papers over questionable images and two expressions of concern, according to Retraction Watch.
Kumar says all but one of the misconduct allegations concerned working conditions in his lab and that he was never accused of fabricating research data or images on his own. He also says the university’s delay and relinquishment of his research grant applications hurt his chances at finding other jobs, and that his reputation and career have been irreparably damaged.
George Washington moved to dismiss the case last year, but a judge said it would proceed, according to Chemistry World. In a joint statement, both Kumar and George Washington said they “wished to resolve and settle all of their differences to avoid the delay, expense and uncertainty associated with administrative proceedings and litigation.”
North Carolina tells the sports governance group that it does not have the authority to punish the university for academic fraud. Association may be heading for another fight with one of its high-profile members.
Employees of Massachusetts Institute of Technology and New York and Yale Universities sued their respective institutions on Tuesday for allegedly allowing them to be charged excessive fees on their retirement savings, The New York Times reported. Each university has several billion dollars in retirement holdings, and the plaintiffs are seeking class-action status. The employees allege that the institutions failed to monitor high plan management fees and poor-performing investments, costing them tens of millions of dollars collectively, according to the Times.
New York University said in a statement that “retirement plans offered to [employees] are chosen and administered carefully and prudently. We will litigate this case vigorously and expect to prevail.” A spokesperson for MIT told the Times that it does not comment on pending litigation. Yale said it was “cautious and careful” with retirement plans and that it planned to defend itself vigorously.
The National Collegiate Athletic Association and five co-defendants will pay $1.2 million to settle a lawsuit brought by the family of a Frostburg State University football player who died after suffering a head injury in 2011. Three Frostburg State staff members, helmet manufacturer Kranos Corp. and retailer George L. Heider Inc. also agreed to the settlement.
The lawsuit alleged that Derek Sheely, a Division III football player at Frostburg State, had earlier suffered a concussion and complained of a headache during a preseason practice in August 2011. He had complained of similar headaches days earlier, as well, and had a bruise on his forehead. According to the lawsuit, instead of pulling Sheely from practice, an assistant coach told him to "Stop your bitching and moaning and quit acting like a pussy and get back out there." Later, while running a drill, Sheely collapsed.
''This is a landmark settlement not just because it is the first brain-injury case that the NCAA has agreed to pay a significant amount of money to resolve, but also because the stakeholders of football are now on notice that they have an obligation to protect the health and safety of the athletes,'' Kenneth McClain, attorney for Sheely's parents, told the Associated Press.
In May, several former college football players from six institutions filed class action lawsuits alleging that their universities, athletic conferences and the National Collegiate Athletic Association were negligent in their handling of the players' head injuries. The athletes who filed the lawsuits all played college football prior to 2010, when the NCAA began requiring its members to have concussion protocols. The lawsuits were filed by former football players for Auburn, Pennsylvania State and Vanderbilt Universities and the Universities of Georgia, Oregon and Utah.
The NCAA was first sued over concussions in 2011. That lawsuit was then joined by several others, becoming a class action. Earlier this year, a judge approved a settlement in the case that includes the NCAA creating new safety protocols and providing $70 million for medical screenings for former college athletes. That settlement included no payments for players already suffering from head injuries, however.
The Association of American Universities has released a series of recommendations for Hillary Clinton and Donald Trump in the presidential campaign. Among the recommendations: sustained 4 percent annual real growth in support for key research agencies, restoration of summer Pell Grants, comprehensive immigration reform and elimination of some regulations that govern higher education and research. Details on the recommendations may be found here.
The wave of tragic and troubling events of recent days in our country -- such as the shooting of black Americans in Baltimore, Baton Rouge and St. Paul, the attacks against police in Dallas and Birmingham, and terrorist rampages in Orlando and San Bernardino -- has brought me back to another tumultuous time: the spring and summer of 1968.
I remember it well because I was a college senior about to graduate. I remember the night of April 5, when I had planned to go into Chicago for an event. Martin Luther King Jr. had been assassinated the day before in Memphis, and that night, Chicago seethed and exploded: a 28-block stretch of Madison Street was left largely in ruins; 36 major fires were reported; 11 people were killed; 48 were wounded by police gunfire and 90 policemen were injured. In two days 2,150 people were arrested. Thousands of army troops were sent in to restore order.
The summer before, I had worked with teenagers in the Cabrini-Green Homes on Chicago’s Near North Side. I lived in a largely African-American church community. I felt comfortable joining pickup games on the asphalt basketball courts and visiting families in these high-rise apartments. After the spring of 1968, gunfire became commonplace from the upper floors of Cabrini-Green, and deep racial tensions made my normal kind of coming and going impossible.
On the Wednesday before graduation, June 5, 1968, I awoke to learn that Bobby Kennedy had just been shot in Los Angeles after winning the California Democratic primary. I can remember a deep sense that our nation seemed to be splitting apart -- a fear that seemed to be coming true when the Democratic National Convention met later that summer in Chicago and spiraled into chaos. Ten thousand demonstrators gathered outside and were met by 23,000 police and National Guard members. These violent clashes were broadcast live to the nation.
The current moment in America reminds me of 1968: the heightened racial tension, repeated incidents of violence, denunciations and defense of police -- all against the backdrop of an overheated political season. Then, many young people felt alienated from the system and found little hope in either candidate of the major parties.
In such troubled times, what are we to think? How are we to act? I have no grand answers to our deep problems as a nation and as a society. The fact is there are no easy answers. But what can we do as college and university leaders? What can our campus communities do? What can I do? What follows is what I am committing myself to, as best I can.
Acknowledge hard truths. The dilemmas of race continue to plague our society. Many of our students will return to campus feeling the pain of racial disparity and racial conflict, which are serious problems that we must not ignore.
Last fall, students across the country were hurt, angry and frustrated by a series of racially charged events and the unnecessary deaths of several unarmed black citizens. Some arrived at their campuses with lists of demands seeking social justice and equity. After another tenuous summer, we must again acknowledge their pain and outrage in the hopes that a modern university setting can help shape national discourse instead of simply being a backdrop for unrest and confusion. We must rededicate ourselves to the unfinished work before us: shaping a society in which everyone, created as equals, receives treatment as such.
Listen and learn. Increasingly in America today, we live in neighborhoods of the like-minded and gain information from like-minded sources. Even on a university campus, it takes effort to cross cultural and racial boundaries. I am convinced that party lines and pat answers are not sufficient to address such troublesome times. We must listen to voices other than accustomed ones. We must be open to adjusting our thinking and our behavior. We must push ourselves beyond what is comfortable, broadening our network of friends and deepening our capacity for empathy. How long has it been since we have, even imaginatively, seen the world through the eyes of someone very different than ourselves?
Like many institutions, Wake Forest University has its most diverse student body ever and is among the 10 fastest changing universities in the country, according to The New York Times. We refer to ourselves as a community in progress, which reflects our belief that we must actively practice what it means to be in community together and that regular updates must hold us accountable to each other. Our strength as a campus community -- and as a nation -- rests on our ability to listen to the voices of others and learn from experiences different from our own.
Start a conversation. Do the hard work of dialogue with those with whom we disagree. We all need occasions to frame challenging conversations and methods to facilitate those discussions. A college campus must foster honest, face-to-face conversation, however difficult, in the classroom, in residence halls and on structured and unstructured occasions. Doing the hard work of dialogue with those with whom we disagree is a common topic among college presidents today.
A recent article in Inside Higher Ed included a charge given by my friend and colleague Harry Pastides, president of the University of South Carolina, in which he urged students and faculty members to “recommit to airing our views in a way that is civil and responsible and recommit to opposing violence in all of its of forms,” including violent language and hate speech. “Come back to campus ready to learn and prepared for conversations to come,” the president wrote. “Most importantly, be ready to extend the hand of friendship to a new face.”
Conversation matters. And it must begin with us.
Retain hope. The United States has a wonderful -- and deeply flawed -- history. As the historian Edmund Morgan has emphasized, we are a nation founded both in liberty and in slavery. This land has provided much opportunity and social mobility for immigrants, and it has made progress since the 1960s in establishing broad gains for African-Americans in education, in business and the professions, and in civic life.
Yet whatever progress has been made in race relations and attitudes, racism is still a troubling reality, and patterns of poverty, particularly in urban communities, seem to extend from generation to generation. Today, we must redouble our efforts in the noble quest for which so many have given their lives: to build a society where life, liberty and the pursuit of happiness remain within the grasp of everyone.
In 1963, Martin Luther King Jr. implored those who would listen. “Darkness cannot drive out darkness: only light can do that,” he said. “Hate cannot drive out hate: only love can do that.” As we -- on our campuses and in America in general -- walk through what feels like another dark hour, let us be people who carry the light and let us be people who choose to love.
Nathan O. Hatch is president of Wake Forest University.
Nathan Miller, who serves on the governing board of California's Riverside Community College District, is under fire for last week tweeting a picture of an executioner with a noose and the phrase "I'm ready for Hillary," The Press-Enterprisereported. Miller resigned from his post on a state taxation board but has not stepped down from the Riverside board, despite calls from faculty and students.
“Though we are not surprised by the descent into such crude incivility given the broader political culture, we are determined to shield our great public institution of higher learning from this infection,” the district's Faculty Association said in a written statement. “Mr. Miller’s behavior is not acceptable in our community -- we wouldn’t tolerate it from our students.”