Principles of the Law, Student Sexual Misconduct: Procedural Frameworks for Colleges and Universities will be presented for discussion at ALI’s 95th Annual Meeting. Below is the Introductory Note included in the draft.
Introductory Note: This Project is an unusual one. It concerns an important topic of current interest: What procedural frameworks should colleges and universities have in place to respond to sexual assault and related misconduct?1In this Project, we use the terms “sexual assault and related misconduct” and “sexual misconduct” to encompass a range of activity prohibited under Title IX and by many campus policies. See below at § 1.1.
This Project is unusual not only in the importance of the subject and the passionate debates generated within and beyond the community of lawyers and judges, but also in the many sources of law with potential bearing on the issues: contracts between universities and their students; state law governing higher-education institutions and concerning, in particular, public colleges and universities; state and federal constitutional law, including the Due Process Clause, which imposes constraints on the procedures of at least public colleges and universities; constitutional and statutory criminal procedure, which may be implicated, indirectly, in investigations and proceedings in campus disciplinary procedures; state common law of torts and contracts; and Title IX of the Civil Rights Amendment Act of 1972, 20 U.S.C.A. §§ 1681 et seq., which prohibits sex discrimination in any federally funded “education program or activity,” as well as related federal and state legislation, pending and enacted (such as the federal Clery Act, as amended, 20 U.S.C.
§ 1092(f), and Title VII of the 1964 Civil Rights Act, 42 U.S.C. § 2000e et seq.), that address or have implications for schools’ responses to campus sexual assault issues.
The Project is also unusual insofar as it involves sources of law that are in the midst of rapid evolution. In recent years, new case law has emerged, and legislation and guidance at the federal level, as well as in several states, continues to shape and reshape the legal landscape for colleges and universities handling these issues.
Scope of Inquiry: Much of the current discussion about sexual assault and related misconduct has focused on questions of the substantive standard that should apply to sexual contact between students, including, for example, whether sexual contact should be considered wrongful unless affirmatively consented to in advance. This substantive question is highly important and is related to questions being addressed by the ALI’s Model Penal Code revision project. Another set of discussions focuses on what colleges and universities can do to help change the atmosphere in which sexual assault and related misconduct occurs, including for example, programs to discourage drinking to excess or use of disinhibiting or incapacitating drugs.
This Project’s scope of inquiry is, however, different: It concerns issues of procedure for responding to, investigating, and resolving allegations of misconduct, rather than the efforts that should be made to help prevent these occurrences through measures affecting the general campus environment, or the substantive standard that will apply to the conduct at issue.
Why Focus on Procedures? There are several reasons for this procedural focus. One is that colleges and universities have faced increased regulatory pressures to modify their internal disciplinary procedures. A second is that procedural models for disciplinary actions regarding sexual assault and related misconduct have received less attention than questions of appropriate substantive standards. Indeed, when issues of procedure arise, public debate often elides the question of university process and moves instead to whether cases should be handled exclusively by law enforcement. But since at least 1997, the Department of Education has interpreted Title IX, 20 U.S.C. §§ 1681 et seq. (2012), to impose obligations on colleges and universities to have effective disciplinary proceedings in place to respond to complaints of sexual misconduct between students. And procedure in this area, as in most areas of law, can have a substantial effect on the application of substantive policy and the fair treatment of all students involved in the disciplinary process.
In light of these factors, many colleges and universities are in need of guidance on questions of procedural models that can handle cases fairly and effectively and with sensitivity to the issues involved. Indeed, effective procedural models are vital to the successful implementation of any substantive standard. The substantive standards being developed and applied in campuses and state legislatures around the country provide, to be sure, an important backdrop for considering the principles of procedure to be applied. Those substantive standards prohibit sexual contact that is unwelcome or unwanted, or to which consent has not been given, or for which consent has been withdrawn. Under any of these substantive standards, or others to come, colleges and universities need to have procedures in place for investigation and adjudication of a fairly wide range of conduct. This dynamic area within the campus sexual assault discourse could benefit from the process of ALI analysis, drawing on the full range of perspectives that ALI members bring.
Why Focus on Student Misconduct? Somewhat different regulatory regimes apply to colleges and universities addressing sexual misconduct by faculty members and other employees than sexual misconduct by students. While addressing all at once would be possible, doing so would substantially complicate the recommendations and analysis here, and would extend the time needed to complete this Project. At our first Advisers meeting and in subsequent discussions, a strong sense was expressed that what colleges and universities most urgently needed was guidance on issues arising between students. Those are not, of course, the only issues of importance, but in light of this expression of urgency by those involved in college and university governance and administration, these are the situations to which this Project is addressed.2There may, of course, be situations in which one student has a supervisory relationship (for example, as a teaching assistant) over another. These and possibly other situations involve formal power imbalances of various types that may affect analysis of issues of consent; different colleges and universities may adopt different substantive rules governing relationships deemed to involve power imbalances. To the extent power imbalances may bear on particular aspects of procedure (for example, the appropriateness of mediation), this Project addresses the issue as it arises in that context.
Legal Landscape of Title IX and Sexual Misconduct 1972-2016: While Title IX, 20 U.S.C.A. 1681 et seq., first enacted in 1972, may not originally have been understood to regulate college and university responses to sexual harassment (including sexual assault),3Title IX provides: “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance,” 20 U.S.C. §1681(a), with exceptions, inter alia, for religiously-controlled institutions to the extent that Title IX’s provisions would be inconsistent with the school’s religious tenets, for the military service academies, for admissions to existing public undergraduate single-sex schools, and for certain sororities and fraternities, 20 U.S.C. § 1681(a)(3)-(6). understandings of sex discrimination have deepened and expanded in the decades since its enactment. This shift emerged under the important influence of, among other work, Catharine MacKinnon’s Sexual Harassment of Working Women (1979), which argued that sexual harassment constitutes a form of sex discrimination, a position adopted by the U.S. Supreme Court in Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986), where the Court held that sexual harassment that creates a hostile work environment is actionable under Title VII.
In the following decade, guidance from the Department of Education’s Office for Civil Rights (hereafter OCR) and important court decisions interpreted Title IX to apply in cases of employee–student, and then student–student, sexual harassment. In Franklin v. Gwinnett Co. Pub. Schools, 503 U.S. 60 (1992), the Supreme Court held that a civil damages remedy is available under Title IX for intentional discrimination, as when a student is sexually harassed by a teacher-coach, of which the school is aware. In 1997, OCR issued guidance, after notice and opportunity for comment, concerning schools’ responsibilities to respond to sexual harassment of students, including the need for “grievance procedures providing for prompt and equitable resolution” of complaints of sexual harassment. U.S. Dep’t of Educ., Office for Civil Rights, Sexual Harassment Guidance: Harassment of Students by School Employees, Other Students, or Third Parties, 62 Fed. Reg. 12034, at 12040 (Mar. 13, 1997) (hereafter 1997 Guidance). Much of the 1997 Guidance was carried forward in revised guidance issued in 2001, as discussed below. In Gebser v. Lago Vista Ind’t School District, 524 U.S. 274 (1998), the Court held that a private action against a school district (there, based on teacher harassment of a high school student) could not be brought unless the school district had actual notice of the allegations and displayed deliberate indifference thereto. Most importantly, in Davis v. Monroe County Bd. of Education, 526 U.S. 629 (1999), the Court upheld Title IX liability for schools in suits seeking monetary relief for sexual harassment of students by other students, when the school knows of the harassment and acts with deliberate indifference to it, and the harassment has the severity, pervasiveness, and objective offensiveness such that it effectively deprives the victim of equal access to educational opportunities or benefits.
Davis is the most recent Supreme Court decision to discuss the nature of school liability for student–student sexual misconduct.4A more recent Supreme Court decision, Jackson v. Birmingham Bd. of Educ., 544 U.S. 167 (2005), held that private actions under Title IX could be brought where a school system retaliates against an employee who complains that others are being discriminated against based on sex in the context of athletic funding. The harassment alleged by another student included repeated “attempt[s] to touch [the student’s] breasts and genital area and [the making of ] vulgar statements such as “‘I want to get in bed with you’” and “‘I want to feel your boobs.’” 526 U.S. at 633. It was alleged that these incidents had been brought to the school’s attention but that no action was taken in response. While holding that such a pleading stated a claim under Title IX, the Court stressed that its conclusion did “not mean that recipients can avoid liability only by purging their schools of actionable peer harassment or that administrators must engage in particular disciplinary action.” Id. at 648. The Court thus expressed disagreement “with respondents’ contention that, if Title IX provides a cause of action for student-on-student harassment, ‘nothing short of expulsion of every student accused of misconduct involving sexual overtones would protect school systems from liability or damages.’ [citations omitted].” Id. The Court likewise noted that “the dissent erroneously imagines that victims of peer harassment now have a Title IX right to make particular remedial demands . . . [(for example, the] victim . . . demand[ing a] new desk assignment). In fact, as we have previously noted, courts should refrain from second-guessing the disciplinary decisions made by school administrators.” Id. Rather, the Court emphasized that “[s]chool administrators will continue to enjoy the flexibility they require,” as long as their response to student–student misconduct is not “clearly unreasonable in light of the known circumstances.” Id. Success in stopping peer-to-peer harassment was not required by Title IX, the Court indicated; “the recipient must merely respond to known peer harassment in a manner that is not clearly unreasonable.” Id. at 649.
In 2001, the Department of Education’s OCR responded to the Court’s decisions by distinguishing between the legal standards for civil liability under Title IX and the regulatory requirements for retention of federal funding. U.S. Dep’t of Educ., Office for Civil Rights, Revised Sexual Harassment Guidance: Harassment of Students by School Employees, Other Students, or Third Parties (2001) (hereafter 2001 Guidance). Issued on January 19, 2001, after notice and comment, the 2001 Guidance emphasized that Gebser and Davis dealt with liability standards in private civil actions for damages, not the standards for agency enforcement proceedings; it concluded that the Court’s reasoning in Gebser and Davis about actual notice did not apply in agency enforcement actions. 2001 Guidance, at ii. For agency enforcement purposes, OCR would not require actual knowledge by the institution but would ask whether the school through its “responsible employee[s]” knew or should have known of the harassment. 2001 Guidance, at 12-13. OCR also reasoned in part that, since the agency always gives notice to grantees of asserted violations before fund termination, the schools at that point would be on notice and have an opportunity to take corrective action voluntarily. Id., at iii-iv. OCR reiterated that “the good judgment and common sense of teachers and school administrators are important elements of a response that meets the requirements of Title IX.” 2001 Guidance, at ii. And OCR affirmed that Title IX required recipients to have a “prompt and equitable” grievance procedure for claims of sex discrimination, including sexual harassment. Id. at iii, 4. 5The 2001 Guidance also noted that “Title IX does not require a school to adopt a policy specifically prohibiting sexual harassment or to provide separate grievance procedures for sexual harassment complaints. However, its nondiscrimination policy and grievance procedures for handling discrimination complaints must provide effective means for preventing and responding to sexual harassment.” 2001 Guidance at 19. Although this guidance may have been de-emphasized initially by the presidential administration that took office in 2001, see Nancy Chi Cantalupo, Burying Our Heads in the Sand: Lack of Knowledge, Knowledge Avoidance, and the Persistent Problem of Campus Peer Sexual Violence, 43 Loy. U. Chi. L.J. 205, 242 (2011), that administration endorsed the 2001 Guidance in 2006. See U.S. Dep’t of Educ., Office for Civil Rights, Dear Colleague Letter (Jan. 25, 2006) (recirculating the 2001 Guidance).
As for the “elements” of an appropriate procedure, the 2001 Guidance identified several criteria for “evaluating whether a school’s grievance procedures are prompt and equitable, including whether the procedures provide for  Notice . . . of the procedure . . . ;  Application of the procedure to complaints alleging harassment . . . by employees, other students, or third parties;  Adequate, reliable and impartial investigation of complaints, including the opportunity to present witnesses and other evidence;  Designated and reasonably prompt time frames for major stages of the process;  Notice to the parties of the outcome . . . ; and  An assurance that the school will take steps to prevent recurrence of any harassment and to correct its discriminatory effects on the complainant and others, if appropriate.” Id. at 20. These criteria were essentially the same as those provided in the 1997 Guidance. 62 Fed. Reg. 12034, 12044. In addition, the 2001 Guidance reiterated the requirement set forth in an earlier regulation, 34 C.F.R. § 106.8(a), that a Title IX coordinator be designated at each school. Id. at 13 n.75; see also 1997 Guidance, 62 Fed. Reg. 12034, 12045.
The 2001 Guidance stated, as to informal mechanisms, that they may be used to resolve sexual harassment complaints if the parties agree, but “that it is not appropriate for a student who is complaining of harassment to be required to work out the problem directly with the individual alleged to be harassing him or her, and certainly not without appropriate involvement by the school (e.g., participation by a counselor, trained mediator, or, if appropriate, a teacher or administrator).” 2001 Guidance, at 21. Moreover, it stated that complainants must have “the right to end the informal process at any time and begin the formal stage of the complaint process.” Id. And in cases involving alleged sexual assaults, the Guidance stated that “mediation will not be appropriate even on a voluntary basis.” Id. As to police investigations, the Guidance cited OCR decisions indicating that schools could not simply stop, or defer, their own actions pending the outcome of a criminal investigation, citing “Academy School Dist. No 20, OCR Case No. 08-93-1023, (school’s response determined to be insufficient in a case in which it stopped its investigation after complaint filed with police); Mills Public School Dist., OCR Case No. 01-93-1123, (not sufficient for school to wait until end of police investigation).” Id. at 21, 38 n.110. The Guidance noted that due-process rights of the accused must be respected, and discussed First Amendment constraints. Id. at 22-23. (Similar language on these points was also found in the 1997 Guidance, 62 Fed. Reg. 12034, 12045 & n.93.) The 2001 Guidance has not been withdrawn and remains in effect 6See U.S. Dep’t of Educ., Office for Civil Rights, Q&A on Campus Sexual Misconduct, at 1 (Sept. 2017) (hereinafter 2017 FAQs); U.S. Dep’t of Education, Office for Civil Rights, Sex Discrimination, Policy Guidance, https://www2.ed.gov/about/offices/list/ocr/frontpage/faq/rr/policyguidance/sex.html (March 13, 2018).
Beginning in 2010, OCR actions signaled some apparent changes in policy. Resolution agreements reached with Eastern Michigan University and Notre Dame University showed the kind of enhanced responses to sexual assault that OCR was seeking in its investigations of colleges and universities.7See Resolution Agreement, Eastern Mich. Univ., Case No. 15-09-6002 (U.S. Dep’t of Educ. Nov. 2, 2010); https://www2.ed.gov/about/office/list/ocr/docs/investigations/15096002-b.pdf; Resolution Agreement, Univ. of Notre Dame, Case No. 05-11-6901 (U.S. Dep’t of Educ., July 1, 2011), https://www2.ed.gov/about/office/list/ocr/docs/investigations/05072011-b.pdf. The U.S. Dep’t of Educ., Office for Civil Rights, Dear Colleague Letter (Apr. 4, 2011) (hereafter 2011 DCL) also signaled a shift in administration policy regarding Title IX. OCR published the 2011 DCL to “explain that the requirements of Title IX cover sexual violence and to remind schools of their responsibilities to take immediate and effective steps to respond to sexual violence.” U.S. Dep’t of Education, Office for Civil Rights, Dear Colleague Letter: Sexual Violence Background, Summary and Fast Facts, at 1 (Apr. 4, 2011). The 2011 DCL defined “sexual harassment” to include “sexual violence,” 2011 DCL at 1 (“Sexual harassment of students, which includes acts of sexual violence, is a form of sex discrimination prohibited by Title IX”), and it defined “sexual violence” to “refer to physical sexual acts perpetrated against a person’s will or where a person is incapable of giving consent due to the victim’s use of drugs or alcohol.” Id; see also id. at 10-11.
The 2011 DCL reaffirmed and “supplement[ed]” the procedural elements of the 2001 Guidance (for what it means to have “prompt and equitable” grievance procedures) as they apply to sexual violence. 2011 DCL at 2, 9. Notably, the 2011 DCL asserted a requirement that colleges and universities apply a preponderance-of-the-evidence standard, rather than a more stringent standard (such as “clear and convincing evidence”), to the determination of responsibility in proceedings resulting from complaints of sexual harassment8
According to Cantalupo, supra note 5 at 240, until the 2011 DCL “only schools that had been investigated had been required to adopt a preponderance of the evidence standard for school hearings of peer sexual violence cases.” For the view that the preponderance standard of the 2011 DCL was not a change in policy because OCR had been advising schools individually to use it, see Amy Chmielewski, Defending the Preponderance of the Evidence Standard in College Adjudications of Sexual Assault, 2013 B.Y.U. Educ. & L.J. 143, 144-145 (2013); Deborah L. Brake, Fighting the Rape Culture Wars through the Preponderance of the Evidence Standard, 78 Mont. L. Rev. 109, 129 (2017). Chmielewksi does call the preponderance standard “[o]ne of the most significant provisions” of the 2011 DCL. Id. at 144. Cf. Gary Pavela & Gregory Pavela, The Ethical and Educational Imperative of Due Process, 38 J.C. & U.L. 567, 596, 619 (2012) (noting that the 1971 Carnegie Commission on Higher Education’s report, “Dissent and Disruption,” annexed as a model the University of Oregon’s disciplinary code that required proof by “clear and convincing” evidence and noting that the “preponderance” standard of the 2011 DCL was lower than the “clear and convincing” standard used by some universities); Nancy Chi Cantalupo, Campus Violence: Understanding the Extraordinary Through the Ordinary, 35 J.C. & U.L. 613, 675 (2009) (indicating that a number of universities still used “clear and convincing” and reporting that a 2006 study “found that of the institutions that mention a burden of proof at all for disciplinary hearings (only 22.4% of the schools that responded), 3.3% use ‘beyond a reasonable doubt,’ 81.4% use ‘preponderance of the evidence,’ and 15.3% use some other standard”); Michelle J. Anderson, The Legacy of the Prompt Complaint Requirement, Corroboration Requirement, and Cautionary Instructions on Campus Sexual Assault, 84 B.U.L. Rev. 945, 1000 (2004) (finding that most school codes were silent on burden of proof but that, of those that address the burden of proof, a majority used preponderance). In addition, the 2011 DCL specified that both parties should have an “equal opportunity” to present relevant witnesses and evidence, stated that if an appeal is provided, it must be equally available to both, and suggested that, ordinarily, investigation of complaints should be completed within 60 calendar days. Id. at 11-12. Echoing the 2001 Guidance, the 2011 DCL stated that while grievance procedures generally may include voluntary informal mechanisms for sexual harassment complaints, “it is improper for a student who complains of harassment to be required to work out the problem directly with the alleged perpetrator, and certainly not without appropriate involvement by the school . . . .” 2011 DCL at 8. Furthermore, the 2011 DCL stated, “in cases involving allegations of sexual assault, mediation is not appropriate even on a voluntary basis” and recommends that schools’ procedures should state that “mediation will not be used to resolve sexual assault complaints.” Id. The 2011 DCL described itself as a “significant guidance document”; it did not go through notice and comment.
In 2013, a Resolution Agreement that the Department of Justice and OCR described as “a blueprint for colleges and universities throughout the country to protect students from sexual assault and harassment” was entered into with the University of Montana-Missoula.9See Letter to Royce Engstrom, President, University of Montana, and Lucy France, University Counsel, University of Montana, from Anurima Bhargava, Chief, Civil Rights Div., U.S Dep’t of Justice, and Gary Jackson, Regional Director, U.S. Dep’t of Educ., Office for Civil Rights, Regional Office, Concerning DOJ Case No DJ 169-44-9, OCR Case No. 10126001, at 1, May 9, 2013 (emphasis added), https://www2.ed.gov/about/offices/list/ocr/docs/investigations/more/10126001-a.pdf. This agreement, which generated considerable attention, included requirements beyond those specified in the 2011 DCL, including the creation of an annual climate survey and training for virtually every member of the community.
On April 29, 2014, the Office for Civil Rights in the Department of Education issued “Questions and Answers on Title IX and Sexual Violence” (also described as a “significant guidance document”) to “further clarify the legal requirements and guidance articulated in the  DCL and the 2001 Guidance.” U.S. Dep’t of Educ., Office for Civil Rights, Questions and Answers on Title IX and Sexual Violence (Apr. 29, 2014) (hereinafter 2014 FAQs). In February 2015, the ALI announced the initiation of this Project.
Legal Landscape of Title IX and Sexual Misconduct 2017-Present: On September 22, 2017, the regulatory landscape changed again, as the 2011 DCL and 2014 FAQs were withdrawn. See U.S. Dep’t of Educ., Office for Civil Rights, Dear Colleague Letter (Sept. 22, 2017) (hereafter 2017 DCL).10The authoritative character of such “guidance” documents is uncertain, see 2017 DCL (noting absence of notice and comment procedure for 2011 and 2014 guidance documents and indicating an intent to engage in notice and comment rulemaking on the subject). The 2017 DCL stated that these prior guidance documents had resulted in denials of fair process to accused students and denials to victims of adequate resolutions of their complaints. Id. at 2. A new “Q&A of Sexual Misconduct” was issued at the same time as the 2017 DCL. See U.S. Dep’t of Educ., Office for Civil Rights, Q&A on Campus Sexual Misconduct (Sept. 2017) (hereinafter 2017 FAQs). The 2017 FAQs differed from the 2011 DCL and 2014 FAQs in several respects, including in its positions that (1) findings in an investigation “should be reached by applying either a preponderance of the evidence standard or a clear and convincing evidence standard,” whichever is “consistent with the standard the school applies in other student misconduct cases,” 2017 FAQs at 5 & n. 19; (2) there is no fixed time within which an investigation must be completed, id at 3; and (3) although complainants and respondents should have equal procedural rights during an investigation, a school may choose to limit appeals only to the respondent, id. at 7. The 2017 FAQs also indicate that although prior resolution agreements remain in force, they do not bind other schools, id. at 7, and state, without limitation other than the school’s determination “that the particular Title IX complaint is appropriate for such a process,” that informal resolution, including mediation, is permitted if the parties voluntarily agree, id. at 4. The Department of Education also indicated an intent to engage in Notice and Comment Rulemaking on these subjects, stating that the “new Q&A will serve as interim guide until the conclusion of notice and comment rulemaking.” U.S. Dep’t of Education Press Release, Department of Education Issues New Interim Guidance on Campus Sexual Misconduct (Sept. 22, 2017).
The Clery Act: The Jeanne Clery Disclosure of Campus Security Policy and Campus Crime Statistics Act (Clery Act), 20 U.S.C. § 1092(f) (2012), is another federal statute, enacted in 1990, to require reporting by colleges and universities of criminal conduct on or near campus. Amendments soon thereafter required that colleges and universities also provide detailed information to students on various aspects of their policies relating to sexual-assault complaints and services for victims of sexual assault. Higher Education Amendments of 1992, Pub. L. No. 102-325, 106 Stat. 448 (1992). Under the 2013 amendments to the Clery Act made by the Violence Against Women Reauthorization Act, Pub. L. 113-4, 113th Cong., 127 Stat. 53 (2013), colleges and universities must advise students of provisions for a “prompt, fair and impartial” disciplinary process, run by personnel trained in sexual-assault crimes and in how to “protect the safety of victims and promote accountability.” 20 U.S.C.A. § 1092(f)(8)(B)(iv)(I).11The 2001 Guidance, as well as the 2017 FAQs, refer to a “prompt and equitable” process required by Title IX. The Clery Act provisions on notifications related to sexual misconduct refer to four specific categories of criminal conduct (“domestic violence, dating violence, sexual assault, or stalking”). 20 U.S.C.A. § 1092(f)(8)(B)(iv).12The scope of Title IX is broader, applying to a school’s obligation to remedy conduct that, while not necessarily criminal, creates a sex-based barrier to equal educational opportunity. These 2013 statutory amendments contemplate that both complainants and respondents have a right to have an advisor (including counsel) present at the hearing, to receive a written account of the hearing decision at the same time, and to be notified of any right to appeal the decision. See 20 U.S.C. § 1092(f)(8)(B)(iv)(II-III). The amendments require schools to advise students of what “standard of evidence” is applied in hearings on complaints of sexual assaults, but they do not specify what that standard is. 20 U.S.C. § 1092(f)(8)(A)(ii). The Department of Education issued implementing regulations, after notice and comment, effective July 1, 2015. 79 Fed. Reg. 62752 (Oct. 20, 2014) (now codified at 34 C.F.R. pt. 668.46(b)). Like the statute, the implementing regulations do not address what “standard of evidence” should be applied, but they do require schools to disclose whatever standard of evidence is used13The provisions of the 2013 statute and implementing regulations are in the form of required notifications schools participating in certain federal programs must provide, but their language suggests at least in some instances that schools must have in place the provisions that are the subject of the notifications. This 2013 statute and its implementing regulations address a number of other procedural issues that bear on this Project (for example, about advising of “victims’ options” including “to decline to notify” law-enforcement authorities), as will be discussed further below.
This Project’s Relationship to and Divergences from Recent OCR Guidance: Schools’ basic obligations to have in place internal grievance procedures for complaints of sexual assault or related misconduct against students, and the possibility of schools facing civil liability if they fail to take appropriate steps in response to known instances of sexual assault or related misconduct, have been clear for years. While the scope of what is required by federal law has areas of uncertainty, the need for an internal procedure has been clear at least since the 1997 federal guidance issued after notice and comment under Title IX; the possibility of schools facing civil liability for failure to respond reasonably to known instances of sexual assault or related misconduct against students was made clear by the U.S. Supreme Court’s 1999 decision in Davis.
The 1997 and 2001 Guidances, the now-withdrawn 2011 DCL and related 2014 FAQs, and the current 2017 DCL and 2017 FAQs were efforts by the Department of Education to be more specific in identifying what kinds of processes would constitute the “prompt and equitable” grievance procedure long required by federal regulations. In the Chapters that follow, this Project treats the regulatory guidance issued by OCR through 2017 as bearing on, but not dispositive of, the best understandings of colleges’ and universities’ statutory obligations under Title IX. More detailed analysis of particular provisions will be found in subsequent Chapters. As discussed below, this Project agrees with some of OCR’s 2011-2014 positions, for example, in favor of having presumptive time frames for completing resolution of sexual-misconduct complaints, and in favor of training investigators and resolvers of complaints of sexual assault and related misconduct in how trauma may affect victims of sexual misconduct.14This Project does not endorse the precise time frame suggested in the 2011 DCL but rather agrees with the principle that presumptive time frames for prompt resolution should be established in college and university polices. This Project takes the position that additional training, for example, in general principles of investigation and due process, and on the effects of intoxication on memory, is also necessary. See below, Chapter 4. This Project also agrees with both the 2011 DCL and the 2017 guidance in favor of facilitating equivalent participation by complainants and respondents in the investigation and resolution process, but offers a somewhat different perspective than the 2017 DCL as to appeals by complainants.
In other areas, this Project diverges from 2011-2014 era OCR positions (or what some college and university general counsel offices believed to be OCR positions), and in some of these areas it agrees with positions taken in the 2017 DCL and FAQs. Areas of divergence or potential divergence from the 2011-2014 guidance include (1) the scope of personnel colleges and universities should designate as “responsible employees” with obligations to report to others in the school full details of incidents of which they learn, (2) the specific recommended time frames colleges and universities should adopt for resolution of sexual-misconduct complaints, and (3) the discretion colleges and universities should have in responding to law-enforcement requests for delays in campus proceedings to facilitate ongoing criminal investigations or prosecutions. Further, the 2011-2014 guidance did not, in discussing training of investigators and resolvers of complaints of sexual misconduct, focus in detail on the need to train in the requirements of fair process, including open-minded investigation and evaluation of all the evidence, as this Project does.15The 2017 FAQs state that schools should have “a trained investigator to analyze and document the available evidence to support reliable decisions, objectively evaluate the credibility of parties and witnesses, synthesize all available evidence—including both inculpatory and exculpatory evidence—and take into account the unique and complex circumstances of each case…Training materials or investigative techniques and approaches that apply sex stereotypes or generalizations may violate Title IX and should be avoided so that the investigation proceeds objectively and impartially.” 2017 FAQs at 4 (footnotes omitted). See also supra note 14.
In addition, this Project diverges from the prior 2011-2014 guidance and finds itself more in accord with the current interim guidance in (1) an emphasis on the need for flexibility among the diverse settings of different colleges and universities rather than developing a “blueprint” to be rigidly followed by all higher-education institutions, (2) contemplating the use of appropriately supervised and voluntary mediation and other appropriately supervised and voluntary restorative or dialogical approaches in some cases of misconduct involving sexual contact, and (3) whether Title IX requires a preponderance standard of proof in resolving sexual-misconduct complaints at colleges or universities that use a clear-and-convincing standard for other disciplinary complaints.
This Project is concerned not only with explicating colleges’ and universities’ obligations under existing case law, statutes, regulations, and regulatory guidance, but also with suggesting how, in areas in which institutions of higher education have discretion in the design of their procedures, that discretion should be exercised, or what factors it is important for such institutions to consider in exercising their discretion—for example, as between broader or narrower designations of who, among faculty and staff should be required to report to a central office details they may hear from students about alleged sexual assaults.
Relationship to Other Student Disciplinary Procedures: One final question about the scope of this Project is whether the ALI should be looking at disciplinary procedures in general rather than focusing distinctly on sexual assault and related misconduct. Since 1979, regulations under Title IX have required that schools have in place “grievance procedures providing for prompt and equitable resolution of student and employee complaints alleging any action which would be prohibited” by Title IX. See 34 C.F.R. 106.8(b), published at 45 Fed. Reg. 30958 (May 9, 1980) and 44 Fed. Reg. 21613 (Apr. 11, 1979). This regulation’s language seems to contemplate grievance procedures for conduct that would violate Title IX—that is, conduct by the college or university.16The application of Title IX to actions other than those of agents or employees of the educational institution was unsettled for some time. See, e.g., Rowinsky v. Bryan Indep. Sch. Dist. 80 F.3d 1006, 1015-1016 (5th Cir. 1996) (holding that Title IX did not impose obligations on school to respond to sexual harassment by students of other students, noting a then-current OCR policy statement describing prohibited sexual harassment by employees or agents of the grant recipient but leaving “unresolved” liability for sexual harassment of students by fellow students); but see id. at 1025 (Dennis, C.J., dissenting) (concluding that “Title IX places upon [the school, having accepted federal funds,] a duty to take appropriate measures to protect students from being subjected in the school environment to sexual harassment, abuse and discrimination of which the board has actual knowledge”). Although certiorari was denied in Rowinsky, 519 U.S. 861 (1996), three years later in Davis v. Monroe County Bd. of Educ., 526 U.S. 629 (1999), the Supreme Court upheld Title IX liability for peer sexual harassment as described in text above. The regulation has come to be understood as requiring mechanisms for resolving complaints by one student against others for conduct that, if not remedied by the university, would result in unequal educational opportunities in violation of Title IX. Guidances of both 1997 and 2001, which specifically addressed sexual harassment, indicate that “[w]hile a school is required to have a grievance procedure under which complaints of sex discrimination (including sexual harassment) can be filed, the same procedure may also be used to address other forms of discrimination,” see 1997 Guidance, 62 Fed. Reg. at 12044 n.83; 2001 Guidance at 19 n.100, and do not require use of separate grievance procedures for handling sexual-harassment complaints (as compared to other sex-discrimination complaints). Nor do the regulations specify any particular relationship between Title-IX-required grievance procedures and a school’s regular disciplinary system for misconduct not involving discrimination.
Student disciplinary processes at the college and university level, though often thought of in terms of allegations of academic dishonesty (such as cheating on exams or plagiarism on papers), have also long dealt with forms of misconduct also penalized by the criminal law. See, e.g., Krasnow v. Va. Polytech, 414 F. Supp. 55 (W.D. Va. 1976) (drug possession off campus); Hill v. Bd. of Trustees, Michigan State, 182 F. Supp. 2d 621 (W.D. Mich. 2001) (participating in an off-campus riot); see also Edward N. Stoner II and John Wesley Lowery, Navigating Past the ‘Spirit of Insubordination’: A Twenty-First Century Model Student Conduct Code with a Model Hearing Script, 31 J.C. & U.L. 1, 23 (2004) (describing cheating and plagiarism as the most common forms of academic misconduct). Claims of violating a wide range of rules of behavior, designed to protect the community’s well-being and reputation, are also typically enforced in such proceedings. See Hill, 182 F. Supp. 2d. at 627 n.2 (“[U]niversities typically take into consideration many off-campus acts in deciding whether to admit or retain a student. For example, if a student sold drugs across the street from campus, or committed arson one block from campus, such acts could certainly be taken into account in determining whether to retain a person on campus. These acts raise legitimate concerns, even fear, as to the safety of the property and persons on campus—i.e., if he does it off-campus, he is as likely to do it on campus. Likewise, encouraging fires, rocking vehicles, and kicking telephone booths, even though occurring off-campus, shows a disregard for the property and safety of others that raises a legitimate concern as to the safety of the property and persons on-campus.”); Stoner and Lowery, at 28, 31 (model code of student conduct defining various theft offenses and hazing actions as violations). So it might be thought that there should be a unified disciplinary process for all complaints against students.
While such a unitary approach would have advantages of simplicity, it also may fail to recognize important distinctions. Misconduct involving personal equality and bodily integrity and security has a different character, in terms of potential impact on victims, than do claims of property damage resulting from alleged vandalism, arson, or theft. And those found responsible for sexual misconduct may face distinctive consequences from those found responsible for other school policy violations. See, e.g., Va. Code § 23.1-900 (effective Oct. 1, 2016) (requiring transcript notations of discipline of students suspended or expelled for “physical sexual acts perpetrated against a person’s will or against a person incapable of giving consent”)17Cf. American Ass’n of Collegiate Registrars and Admissions Officers, Transcript Disciplinary Notations: Guidance to AACRAO Members, at 3-4 (June, 2017), http://www.aacrao.org/docs/default-source/TrendTopic/Disciplinary-Notations/transcript-disciplinary-notations-guidance.pdf?sfvrsn=0 (recommending a transcript notation in cases of expulsion or suspension for all disciplinary infractions, but recommending no transcript notation for disciplinary probations and warnings for minor infractions). An individual found responsible in a college disciplinary process may have to explain and overcome that adverse fact not only in seeking further education, but in future applications for professional licenses or employment, or in other settings. Moreover, the regulatory environment differs: the 2011 DCL contemplated distinctive procedures, and detailed obligations are now imposed on hearings involving sexual assault and related misconduct by virtue of the 2013 amendments to the Clery Act and accompanying regulations—including that, if a student wants, an advisor of the student’s choice must be allowed to accompany the student to institutional disciplinary proceedings (and related meetings). These provisions would, if applied across all disciplinary proceedings, constitute a very substantial change for many schools in how disciplinary complaints are handled. For all these reasons, the limited scope of this Project seems sensible.
However, the otherwise existing disciplinary procedures at different schools may be relevant to particular schools’ choices of procedures, at least in this sense: Procedures generally used by schools to establish responsibility for other disciplinary offenses may influence perceptions of the fairness of particular procedures in the context of sexual assault and related misconduct. For this reason, while this Project identifies principles for procedures for sexual misconduct, other disciplinary procedures in place at particular schools provide part of the relevant context for making choices within these principles.