One Person as ‘Prosecutor, Judge and Jury’

Experts fear the worst with George Washington's new Title IX policies, in which a single investigator decides whether to move forward with a sexual assault case.

June 5, 2018
 

As speculation swirls over how the Trump administration will direct colleges to handle campus sexual assaults, George Washington University has moved away from a panel of students and professors judging these cases, handing them over instead to a single investigator.

Institutions relying on one official -- whether that is an internal employee or an outside contractor -- is nothing new for adjudicating cases that fall under the federal gender antidiscrimination law, Title IX of the Education Amendments of 1972.

But the shifts at George Washington speak to a larger debate on how colleges will respond to an Education Department that has given them far more flexibility under Title IX than the previous administration did -- which is detrimental, supporters of sexual assault survivors say. The “single-investigator” model remains unpopular among those advocates, as well as civil liberties and legal experts. Those who favor the system believe it removes the responsibility from a mix of panelists who may be inexperienced with sexual assaults and the proper procedures.

The Education Department is also investigating George Washington, which has been the subject of two recent Title IX complaints, one from an alumna blaming the university for neglecting her after she reported alleged sexual violence. The woman sued the university last month. A second lawsuit, filed in D.C. Superior Court last month, alleges that the institution didn’t protect five female current or former student workers from a sexual predator who harassed them in the workplace and allegedly raped three of them when they were drunk.

Coinciding with the legal pressure on the university come the changes to its Title IX policies, which the Board of Trustees approved this month and which take effect July 1.

“This policy unifies our Title IX procedures and policies for all of our GW community members and places them all under the aegis of the Title IX office,” Caroline Laguerre-Brown, vice provost for diversity, equity and community engagement, said in a statement. “It also provides additional detail about the processes involved and the preparation that goes into the decision making around those processes and gives more detailed guidance on questions that individuals may have as they are considering what is the best way for them to come forward.”

Laguerre-Brown said by email later that the single-investigator system was "the preferred approach to provide a just, equitable and thorough process for our community." She added that the policy includes "numerous steps and procedures" for a fair investigation.

No longer does a six-person group of students and professors collect evidence on a case and then determine whether there was a sexual misconduct violation. Now one official, either from the university or an outside hire, will make that call after interviewing both parties and witnesses and conducting an investigation. Then another administrator will hand down a punishment, if needed.

The policy doesn’t spell out who investigators might be, other than that they need annual training on sexual violence.

Among the other changes: mandating that professors and academic advisers report sexual assault that they learn about, previously only a requirement for department chairs and administrators.

Though faculty members generally believe the policy is an improvement, they said they have been displeased with how rushed the process was and how they were not given adequate time to review it. Some student activists, however, say they are satisfied with the changes.

“It’s comforting to know that trained Title IX investigators will be helping survivors navigate what can be a very challenging, scary and long process,” Kalpana Vissa, a George Washington senior and co-president of GW Students Against Sexual Assault, said in a statement. “To have someone who understands the policy and whose job it is to support survivors is going to make a world of difference.”

Students can also now choose not to pursue a traditional process at all. The Education Department last year allowed institutions to start using alternative resolutions to cases, which for George Washington isn’t specified in policy, other than possible education or training programs for an accused student, or conversations with him or her. Other institutions have green-lit “alternative resolutions” in their policies, but generally not for rape cases. Laguerre-Brown said the decision to proceed with an alternative resolution is done case by case.

Education Secretary Betsy DeVos last fall rolled back Obama-era guidelines on Title IX, which survivor advocates credit with drastically improving the culture and campus processes for rape and sexual violence victims. Critics of the Obama rules have said they were an unfair overreach (though they largely were based on existing guidance on Title IX) and that accused students often weren’t provided “due process” rights. New draft direction from the department is expected this fall.

Interim directives from the department permit alternative resolutions, remove certain time frames for sexual assault investigations, and allow institutions to use whatever evidentiary standard they wish -- a particularly controversial point. The temporary rules don’t favor either a full panel or a single investigator.

A department spokeswoman didn’t respond to request for comment on what the department’s preference might be.

But outside of colleges and universities, a single-investigator model is often disliked, experts say.

“Title IX sex discrimination procedures, especially ones involving allegations of gender-based violence, are complex matters not well suited to having a single official with sole responsibility for resolving them,” S. Daniel Carter, a college safety consultant and president of Safety Advisors for Educational Campuses, wrote in an email. “While Title IX systems ought not to mimic full court proceedings too closely, given the serious issues involved, basic checks and balances beyond a single decision maker are warranted. This is especially so in the rapidly evolving legal landscape that higher education finds itself in now, where the mistakes or biases of even one official can result in an adverse legal ruling.”

For the last several years, accused students have swamped institutions with lawsuits that allege bias against them during sexual assault proceedings. Some of these plaintiffs have been successful.

When one investigator has been involved with the cases that Carly Mee, a lawyer and interim executive director for legal advocacy group SurvJustice, has handled, they haven’t gone well.

Often one official doesn’t know all the questions to ask to yield the important information to resolve a case, Mee said. Despite that these investigators are often trained, sometimes they haven’t been prepared to sensitively handle survivors, she said.

When a hearing occurs, both sides can submit questions for the panelists to ask, too, Mee said. This, and cross-examination, isn’t always possible with an investigator, she said.

“I think schools like it because it is a simpler process,” Mee said. “You don’t have to train as many people … it gives the school more control. They’re the ones getting to ask the questions and not handing over any control to the parties.”

The Foundation for Individual Rights in Education, a civil liberties watchdog that often lobbies for due process rights, believes that a single investigator can deprive students of this.

Even if a person is unbiased, he or she is still serving as a prosecutor, judge and jury, said Samantha Harris, FIRE’s vice president of policy research.

She also noted the problems with the accused not being able to confront their accuser in some fashion.

But Brett A. Sokolow, president of the Association of Title IX Administrators, said that George Washington isn’t truly using a “single-investigator” system because of its extensive new appeals process.

An appeal is made to a reviewer that the university hires, no one internal, but often an outside attorney.

Sokolow did recommend that George Washington add one additional step. Instead of the investigator determining whether a violation happened, then an administrator administering the consequences, have another university representative review the investigator’s report and then decide whether to move forward with punishment, he said.

“I am opposed to the single-investigator model … except at the very smallest and resource-strapped private schools and colleges,” Sokolow said by email.

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