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.