Wesley College, in Delaware, violated the gender discrimination law Title IX when it disregarded the due process rights of students accused of sexual misconduct, the U.S. Department of Education announced Wednesday.
The decision is unusual. Over the last five years, the department’s Office for Civil Rights has opened Title IX investigations into nearly 200 institutions where students have accused administrators of mishandling their reports of sexual assault and harassment. Very few of those investigations were prompted by accused and disciplined students, and even fewer have concluded with a finding in those students' favor.
“It is the first time that the agency has found Title IX violations in response to a complaint by a disciplined student,” said Erin Buzuvis, an expert on Title IX and director of the Center for Gender and Sexuality Studies at Western New England University. “But I'm not particularly surprised by the outcome, in the sense that it is justified by the facts.”
In March 2015, the college learned that several fraternity members had filmed a man and a woman having sex without the knowledge or consent of the woman. A day later, the college notified four male students that they were being charged with violating the college’s sexual misconduct policy for filming and sharing the video. One of the students was the male student in the video with the victim, while the other three were accused of colluding with that student to plan and implement a secret live digital stream of the sexual encounter.
All four students were expelled from the college within the week.
One of the male students, however, maintained that he was innocent, and the female student also told administrators that she did not believe that particular student was involved. She reiterated this belief to the college even after the male student was expelled, according to the Education Department, saying the other three male students had later admitted to her that they were solely responsible for the live stream. The college told her and the accused student that there would have to be an appeal in order to have the ruling reversed.
The accused student submitted an intent to appeal form, citing the female student’s new evidence. The college rejected his request. The student’s expulsion remained in place, and he eventually completed a trade program at another institution. His mother later filed a complaint with the Education Department’s Office for Civil Rights.
During its investigation, OCR found that the college not only ignored the accused student’s right to due process but also its own established policies and procedures.
The college never interviewed the four accused students, and administrators never provided the men with a copy of the incident report or the college’s investigative findings. The college imposed an interim suspension ahead of the hearing, banning the students from campus and attending class, while not giving them an opportunity to challenge the suspension. The college's Title IX policy specifically stated that accused students must be interviewed, provided with relevant documents and given a chance to show why an interim suspension would not be necessary.
Typically, according to Wesley’s student handbook, students accused of misconduct will first meet with administrators at what the college calls an educational conference. It is at this meeting that the student is informed of his or her options, which include either entering into an administrative plea deal of sorts or scheduling a formal hearing with a judicial board.
In this case, there was no educational conference, according to OCR’s report, with the college skipping ahead to the hearing. When the accused student appeared for what he thought was going to be an educational conference, he was actually attending the formal judicial board hearing. The student did not provide any witnesses or other forms of evidence, as he was unaware that he had already reached the “final step in the process,” OCR said.
The entire process took seven days, though the college’s policy allows investigations to last as long as 60 days. OCR also found that the college handled several other reports of sexual misconduct between 2013 and 2015 “in an inequitable manner.”
Following OCR’s investigation, Wesley agreed to reinvestigate all cases it mishandled during that time frame, including the student’s case at the center of the investigation. It must also provide training to students, professors, administrators and staff members; revise its Title IX grievance procedures; publish an antiharassment statement; and create a new Title IX committee.
“As a community, we affirm the inherent dignity and advocate for the safety and well-being of all our students,” the college said in a statement Wednesday. “Wesley College appreciates the insights and recommendations provided by the Office for Civil Rights and will incorporate them into our ongoing efforts of providing our students and community an educational environment that is second to none.”
In 2011, the Department of Education’s Office for Civil Rights issued a Dear Colleague letter that urged institutions to better investigate and adjudicate cases of campus sexual assault. The letter clarified how the department interprets Title IX of the Education Amendments of 1972. For the past five years it has been the guiding document for colleges hoping to avoid a federal civil rights investigation into how they handle complaints of sexual violence. The letter kicked off a dramatic increase in such investigations, with hundreds of students filing Title IX complaints against their institutions.
At the same time, accused students began suing institutions for disciplining them, arguing that OCR’s guidance and enforcement had caused the pendulum to swing too far in the opposite direction and that colleges were rushing to judgment in order to comply with federal law. Republican lawmakers and civil liberties groups have made a similar argument, taking particular umbrage with the department’s interpretation that Title IX requires colleges to use the lower preponderance of evidence standard of proof when deciding sexual assault cases. The department is now facing three lawsuits over its guidance.
While accused students have seen a string of recent legal victories (more than a dozen accused students have won lawsuits in the last year), some students have instead turned to OCR for assistance, filing their complaints under the same statute as victims of the crime they were accused of. Advocates, experts on Title IX and civil liberties groups said this week that they believe this is the first of those complaints to result in a finding in favor of accused students.
A department official said Wednesday that this is not the first time OCR has found a college in violation of Title IX over due process concerns, pointing to a case at the University of Virginia last year. That case was largely focused on victims, however, with the treatment of accused students being among many issues cited by the department.
“Ultimately, this is a welcome recognition of basic due process,” said Will Creeley, vice president of legal and public advocacy at the Foundation for Individual Rights in Education. “But it’s not a real corrective to OCR’s continued longstanding lack attention to due process rights. OCR has not paid attention to due process rights throughout the past five years, so it’s not surprising that administrations in their rush to comply with OCR’s mandates have thoroughly neglected to pay attention to due process protections. In some sense, OCR is reaping what they’ve sown.”
Buzuvis, of Western New England University, said OCR’s finding demonstrates that campus policies and how they are carried out are what is often flawed, not the Education Department’s interpretation of Title IX.
“Even though Title IX is often blamed when institutions engage in investigation and adjudication tactics that are unfair to the accused,” she said, “this outcome hopefully clarifies that Title IX not only does not require such tactics, it prohibits many of them as well.”