Last week, a player for the University of Florida’s football team was cleared of responsibility for an alleged sexual assault against a female student. The woman he was accused of assaulting was not present; she boycotted the proceedings to protest the person the university chose to decide the case.
The university appointed Jake Schickel, a former assistant state attorney, to decide whether the leading wide receiver should be punished for sexual misconduct. Schickel is also a donor to Florida Football Boosters, contributing as much as $8,599 per year to the football team, as well as another $2,000 to $4,999 per year to the basketball program.
In a statement last week, the university said that Schickel had been vetted for impartiality and that the student’s complaint was “addressed following Title IX regulations, U.S. Department of Education guidelines and university policies.” The university may be correct, but student conduct experts and victims’ advocates argue there’s a difference between providing a fair hearing and just meeting the letter of the law.
“The whole situation is a disgrace and disservice to everybody involved in this process,” said John Clune, the lawyer for the Florida student making the sexual assault accusation. “It doesn't matter how competent someone is, if they have a bias, you can't remove that bias. The school knows better, and they owe the female students at UF better than this. It sends the wrong message.”
The possible bias of hearing officers joins a growing list of concerns that have arisen around colleges' judicial processes as they relate to sexual assault. There's debate that the hearings are becoming too similar to courtroom trials, and debate that, by using a lower standard of proof, they're not similar enough. Colleges are facing lawsuits from the accused students they punish and the victims who say their reports were mishandled. In some cases, both parties are unhappy and the university finds itself facing lawsuits from both the accusers and the accused over the same case.
Whom colleges choose to oversee sexual misconduct hearings is an important decision, and the process varies among institutions. Some designate specific employees to the task, while others appoint outside lawyers and judges. Title IX of the Education Amendments of 1972, the gender discrimination law that requires colleges to investigate and adjudicate claims of campus sexual assault, mandates only that institutions provide a prompt and equitable response to such complaints.
Colleges have considerable flexibility when appointing hearing officers to decide the cases, said Gary Pavela, a national consultant on legal issues in higher education and editor of the ASCA Law and Policy Report.
In 2005, two football players sued the University of Maine after they were found responsible for sexual misconduct and were suspended. The players claimed that the chair of the hearing committee was biased against them because she was also a board member of the organization Rape Response Services. The court disagreed, writing that hearing officers are “entitled to a presumption of honesty and integrity,” absent any showing of actual bias.
“Those kinds of legal standards, however, are not meant to foreclose administrative judgment and discretion,” Pavela said. “The issue of potential bias in university disciplinary proceedings has become a contested issue to both accusers and accused.”
In a lawsuit earlier this year, the University of Tennessee at Knoxville was accused of its hearing processes being biased in favor of accused students, in particular athletes. The university was one of only a few in the country to use an administrative hearing process that allowed accused students access to legal representation and the ability to confront their accusers through cross-examination at a hearing in front of an administrative law judge.
The accused athletes were provided with a list of sympathetic lawyers, many of them athletic boosters. The administrative law judge who would decide the hearing was handpicked by the university’s chancellor. As part of that lawsuit’s settlement, the university agreed to no longer provide the list of lawyers to athletes, and it created a commission that will re-examine its hearing processes for bias.
Southern Arkansas University has also recently been accused of bias among its hearing officers.
The university’s hearing process includes a group of university officials known as the Title IX Team. The Title IX Team, which includes Southern Arkansas' Title IX officer and the associate dean of students, among other officials, assigns an investigator from the team to a case. The investigator later shares his or her findings with the team, and the team makes a recommendation to the team chair. The team chair then forwards that decision to the university’s vice president for administration, who decides if the recommendations are appropriate.
Last year, a female student reported being groped by a naked male student, and in response, the university’s associate dean of students, Carey Baker, proposed that the male student be suspended for one year. The female student agreed.
Later, however, the student said she learned that she had not been fully informed of her options under Title IX, including the possibility of no-contact orders and having a full disciplinary hearing. Skipping a hearing and suspending her alleged attacker, she said, allowed the male student to get off with too light a punishment and another student, the woman's former boyfriend, who allegedly colluded with the male student who assaulted her, to go unpunished.
The investigation has now been reopened, but Laura Dunn, a lawyer and victims' advocate who is assisting the female student, said the new investigation is being mishandled as well.
After BuzzFeed News published an article about the student’s complaint, the spouse of another Title IX Team member liked social media posts about the case that defended the institution and its handling of the case. One Facebook status liked by the spouse criticized news coverage of the case by saying, “All because some little girl is flooding the internet with a crock of” excrement (symbolized by an emoji). The SAU official married to the person who liked the posts remains part of the Title IX Team handling the student's case.
Baker, the associate dean who the student said first bungled her report, also remains on the case.
“The same dean who messed up the process the first time gets to decide what the new findings mean, and he is also who gets to decide if the team’s decision is able to be appealed,” Dunn, founder and executive director of the victims' group SurvJustice, said. “I don’t think it’s that hard to find someone who is qualified that isn’t also biased, yet it is a common issue that arises.”
In a statement Tuesday, Aaron Street, a spokesman for Southern Arkansas, said the university was not aware of the social media posts, and that the decision to reinvestigate the case is not an admission that the original process was mishandled. Rather, he said, it's an attempt to "ensure fairness to all parties," by taking the female student's concerns about the earlier investigation seriously. "Differing views of what constitutes appropriate processes do not equate to mishandling," Street said.
Laura Bennett, president of the Association of Student Conduct Administration, said that it can be a difficult for some institutions, particularly smaller or more geographically remote colleges, to find hearing officers who are both qualified and completely free of bias. Many institutions, after all, have appointed lawyers or judges who are alumni, an allegiance some could argue means the officer has a bias toward protecting the university’s reputation.
Pavela, the editor of the ASCA Law and Policy Report, suggests that colleges generally accommodate a student's "plausible request for disqualification" of hearing officers, as long as the request seems to be made in good faith -- even if officials don't completely agree with the reasoning behind it.
Another possible solution -- with both preventing bias and saving money in mind -- that is gaining some traction is to create a regional center that would take sexual assault investigations out of the hands of colleges completely and turn the cases over to investigators and adjudicators not affiliated with any one institution. The state of Virginia proposed such a plan in its education budget in January and is currently conducting a $100,000 pilot program to study its effectiveness.
In the meantime, Bennett said, institutions that “find themselves challenged to have enough staff with the time and expertise to investigate and adjudicate cases may be able to look to procedural adjustments to eliminate or minimize bias.” This would include, for example, an appeals process led by officials who were not involved in the initial hearing.
“Institutions continue to face pressure from all sides as they are resolving Title IX cases,” Bennett said. “Finding qualified and experienced individuals willing to be involved in these cases amid the highly litigious landscape continues to be a challenge.”