Better adjudicating campus sexual assault

A male student-athlete at the University of Southern California recently had his school suspension arising from an alleged student conduct code violation "as a result of his participation in a group sexual encounter at a fraternity party" in January 2013 reversed by the California Court of Appeal.

His case, John Doe v. USC, 2016 DJDAR 3265 (April 5, 2016), should call into question the mandates of the U.S. Department of Education's Office of Civil Rights (OCR) and that office's interpretation of Title IX. The case illustrates that basic due process protections for students accused of sexual harassment and violence are being sacrificed by universities at the insistence of OCR.

The decision was authored by Justice Audrey B. Collins, who was appointed by President Bill Clinton to the federal district court in 1994 before her 2014 appointment to the Court of Appeal by Gov. Jerry Brown. It should be required reading for all university Title IX officers and for officials at OCR.

The court's ruling makes clear that USC did not afford sufficient due process protections to the accused and that robust university policies to address sexual violence do not have to be inconsistent with basic procedural fairness.

John Doe never received notice of the specific factual allegations against him. What he received was a letter from USC's office of Student Judicial Affairs and Community Standards (SJACS) telling him that he allegedly had violated various sections of the student conduct code. The letter identified the place and date of the violation and, by telling him not to contact a particular person (identified as Jane Doe), implied that she was the complainant.

The paucity of information might have been less of a problem if Jane had reported her allegations soon after the January 2013 incident, when memories were fresh. But John did not receive a notice of allegations until September 2013. Further, Jane admitted that there were two separate group sexual encounters, that the first one and part of the second were consensual, and that another individual, not John, acted in a manner to which she did not consent.

Thus, in this particular case, exactly what happened moment-to-moment mattered. USC never gave John notice of exactly what he did or did not do that led to the charges against him.

The lack of specific notice at the beginning of the investigation might not have been a problem if the investigation led to specific charges and a hearing. But there was no hearing. SJACS investigated the allegations over about six weeks, where Jane was interviewed four times, John twice, and statements were also taken from other witnesses.

At the end of this process, instead of handing the investigation file to a neutral or a tribunal, SJACS simply issued a report and ruled on the case itself, suspending John for two years. The court noted that "SJACS relied on information never revealed to John."

John appealed, and obtained a reversal of seven of the nine violations found by SJACS and had his suspension reduced to one year, "the Appeals Panel suspended John on a different theory than SJACS." A theory of liability can evolve during an investigation, but not on an appeal.

The Court of Appeal found that USC's sanction against John was deficient because of the lack of notice and the change in theory on the administrative appeal. The court also found there was not substantial evidence supporting the two violations found by the Appeals Panel.

In fairness to USC, the procedures that it followed conform to guidance that all colleges received from OCR. That office implemented major changes in university sexual harassment procedures through a "Dear Colleague" letter in 2011.

While agency "guidance" can be useful to regulated parties so that they can understand how to comply with law, it is unusual and unfortunate that the major changes demanded in the "Dear Colleague" letter did not pass through the notice and comment procedures of a rulemaking. If they had, perhaps the guidance would have been both clearer and wiser.

OCR's letter made clear that it "expected prompt and effective steps to respond to sexual harassment or violence" and that when a school "does not come into compliance voluntarily, OCR may initiate proceedings to withdraw Federal funding" or refer the school to the Justice Department for litigation.

To OCR, compliance could only be achieved with far-reaching changes. Sexual harassment allegations had to be adjudicated under a preponderance of evidence standard. OCR specifically advised that a clear and convincing evidence standard, widely used by universities, was "not equitable under Title IX."

OCR also stated, "[A] school should not allow the alleged perpetrator to review the complainant's statement without also allowing the complainant to review the alleged perpetrator's statement." This effectively precludes someone accused from knowing the accusation against them before giving their own statement.

OCR said nothing about how an alleged perpetrator would be given notice of a complaint. OCR specifically precluded parties from cross-examining each other "personally." It did not require that a charged party have access to a lawyer or representative, although it did require that if an accused could have representation, so could the accuser. Many schools preclude an accused from having an attorney participate in any investigation.

While OCR stated that schools "must provide due process to the alleged perpetrator," it qualified that guidance in the next sentence by stating, "[S]chools should ensure that steps taken to accord due process rights to the alleged perpetrator do not restrict or unnecessarily delay the Title IX protections for the complainant." OCR does not explain when due process rights restrict Title IX protections.

OCR emphasized that investigators and adjudicators should be trained in handling complaints of sexual harassment or violence. It did not mention whether such training should also include an emphasis on due process for the accused.

The goals of a robust response to allegations of sexual misconduct and due process for the accused should not be at odds. USC was correct to give notice to John within a few days of that there were allegations against him. Its mistake was not giving John a clear written statement of what he was accused of before suspending him.

OCR suggested in the 2011 that an investigation should take 60 days to complete. USC completed its investigation in that amount of time, but provided no due process once the investigation was complete. Its investigation was the process.

While OCR suggested "a school's investigation and hearing processes cannot be equitable unless they are impartial," the only way a school is practically going to be investigated by OCR is if it fails to respond ardently to complainants. OCR is not sending out 20-page "Dear Colleague" letters reminding colleges of the importance of due process.

The potential for Title IX liability also gives school administrators added incentive to find for complainants. In her written statement to the USC Appeals Panel, Jane Doe specifically stated, "I do not believe that the University is enforcing its Title IX responsibilities for responding effectively and immediately to reports of sexual harassment, or quelling what is currently a hostile environment. I expect that the University will hold [to] its original decision for my case in order to ensure my safety, comfort, and peace on this campus."

If they were not already aware of the potential for liability and investigation by federal authorities, the USC administrators who made up the Appeals Panel were certainly on notice after receiving Jane's letter. It is difficult for a quasi-judicial decision-maker to be impartial when a Title IX lawsuit and a federal investigation might be the consequence of a wrong answer.

Campus sexual violence is a serious issue that demands a serious response. Because the stakes are so high, universities should have clear rules and clear procedures that protect all students. Following Justice Collins' guidance in her recent opinion would be a good first step toward a better system of adjudicating these difficult issues.

David A. DeGroot is president of the San Francisco lawyers chapter of the Federalist Society.