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Due Process Legal Update: Complaints and Rulings Keep Coming
Ordinarily, I wait more than a week between bringing you these due process legal updates. But in the days following my last dispatch, a number of interesting things have happened that I want to bring you up-to-date on.
A complaint filed last week against Drake University in Iowa includes an intriguing argument. Like most such suits against private universities, it claims that Drake breached its contract with the student-plaintiff and discriminated against him on the basis of sex in violation of Title IX. But in addition, it argues that the university was鈥攂y virtue of coercive federal pressure鈥攁 state actor at the time of the incident, and as such, deprived the plaintiff of his constitutional due process rights.
The complaint in Doe v. Drake University, brought by a male student who was expelled from the university, stems from an allegation of sexual assault that occurred when both parties had been drinking heavily and had limited recollection of the night鈥檚 events. The plaintiff鈥檚 complaint alleges that, among other things, the university鈥檚 investigator failed to interview critical witnesses who could have shed light on the accuser鈥檚 level of intoxication during the night in question, and failed to investigate a claim by the accused student that he, in fact, had been unable to give consent due to his own intoxication level. The plaintiff鈥攚ho has language-based learning disabilities鈥攁lso complains that the university failed to provide him with the necessary accommodations during the disciplinary process.
As is typical with complaints against private universities, the plaintiff鈥檚 complaint includes claims that the university discriminated against him on the basis of sex, particularly because it was under federal Title IX investigation at the time of the incident, and that the university failed to follow its own procedures, in violation of its contractual obligations.
The complaint also alleges that the university violated the plaintiff鈥檚 constitutional due process rights. Specifically, the complaint alleges that the federal pressure on universities to address campus sexual assault鈥攂eginning with the ordering schools to adopt the 鈥減reponderance of the evidence鈥 standard for sexual misconduct adjudications鈥攚as so intense as to effectively turn the university into a 鈥渟tate actor鈥 for constitutional purposes. The complaint describes this pressure as follows:
Since 2011, the United States has consistently reaffirmed and adhered to the threat of substantial monetary penalties made in the Dear Colleague Letter. For example, in July 2014, DOE Assistant Secretary for Civil Rights Catherine Lhamon stated that she would strip federal funding from any college found to be non-compliant with the requirements of the Dear Colleague Letter. 鈥淒o not think it鈥檚 an empty threat,鈥 Lhamon warned. Shortly after this edict was issued, Drake was brought under investigation by the OCR for mishandling sexual assault cases.
[...]
Upon information and belief, Drake acted in response to the federal government鈥檚 threat that colleges refusing to comply would be found in violation of Title IX and be subject to extremely substantial, indeed crippling, monetary penalties.
Accordingly, Drake was coerced by the United States into complying with the Title IX investigative and adjudicatory process mandated by the Dear Colleague Letter and by subsequent federal actions, statements, and directives.
We will be following this new suit with interest, and will keep you apprised of any developments.
There have also been two more judicial decisions issued since my last update, and they could not be more different from one another.
In Doe v. University of Cincinnati, the U.S. Court of Appeals for the Sixth Circuit upheld a federal district court鈥檚 decision dismissing the complaints of two male students who claimed that the University of Cincinnati, which is public, violated their due process rights and discriminated against them in campus sexual misconduct adjudications. Among other things, the plaintiffs argued that the hearing panel was prejudiced by having been allowed to hear victim-impact statements鈥攊ncluding, in one plaintiff鈥檚 case, a statement that the plaintiff was 鈥渁 rapist鈥 and was 鈥済oing to Hell鈥濃攂efore deciding their guilt or innocence. In an unpublished decision, the court acknowledged that the students had a significant interest in the outcome of the proceedings against them, noting that 鈥淸a] finding of responsibility will thus have a substantial lasting impact on appellants鈥 personal lives, educational and employment opportunities, and reputations in the community.鈥 However, the court held that the students鈥 allegations about the hearing鈥檚 shortcomings did not amount to due process violations.
In Arishi v. Washington State University, on the other hand, a Washington state appellate court ruled that under Washington鈥檚 state Administrative Procedure Act, universities are required to conduct a 鈥渇ull adjudication鈥 in cases 鈥渨here a college or graduate student faces expulsion or is charged with sexual misconduct that would amount to a felony under criminal law.鈥 This decision鈥攚hich is highly protective of students鈥 due process rights鈥攚as very specific to the laws of the state of Washington. But the court did make some general observations about the nature of campus sexual misconduct adjudications that have broader applicability. The court noted, for example, that the charges against the plaintiff posed 鈥渢he risk of severe hardship,鈥 both to the plaintiff鈥檚 economic interests and to his reputation. The court also noted that 鈥渃ross-examination鈥 was 鈥渃ritical鈥 to a fair hearing in the case, since 鈥渁ssessment of veracity and credibility were key.鈥
As I鈥檝e written before, this area of the law is evolving rapidly and with sometimes unpredictable results. We鈥檒l bring you more on these important decisions as they come in.
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