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« When Do Students Pose a Threat and What are the Institutional Mandates and Authority to Respond? | Main | Title IX Approaches the Bench: Cross-Examination in Sexual Misconduct Hearings »

The pendulum swings back: Title IX due process at private colleges

Title IX of the Education Amendments of 1972 prohibits sex-based discrimination on the campuses of public educational institutions. Students who have been victims of peer sexual assault have successfully brought legal action against public colleges claiming Title IX discrimination due to insufficient preventive measures or investigation. Students have also sued privateinstitutions, but on a contract law basis, claiming colleges violated their own published policies. Conventional wisdom has it that students who are accused of assault may sue public universities for issues of due process under the 14thamendment but that private institutions aren’t subject to constitutional due process. A recent ruling by a federal judge of the U. S Court of Appeals’ 6thCircuit could signal a challenge to this understanding.

The judge’s ruling, arises from a lawsuit brought by a student against Rhodes College, a private liberal arts college in Memphis, Tennessee. The Rhodes student is the accused perpetrator in a sexual assault who was held responsible by the college’s investigation and expelled. The student, John Doe, took a female student as his date to a fraternity party where she consumed alcohol and took drugs, eventually becoming ill and incapacitated. She later told friends she had been taken from the party and raped. She also reported the assault the next morning after going to a hospital whose staff reported it to local police. Doe claims that the college discriminates against men in sexual assault cases and, in his case, denied him due process because he was not allowed to ask questions of his accuser at the college’s Title IX hearing nor was he allowed to question a witness, another female student, Doe claims was involved in and responsible for the assault. The U.S. District Judge, John T. Fowlkes Jr., agreed and granted a temporary restraining order which prevents the college from dismissing Doe.

This is not the first instance of the Sixth Circuit addressing due process in sexual assault cases. It joins a previous ruling made last November in a lawsuit against the University of Michigan, that colleges must allow students or their representatives to directly cross-examine their accusers in sexual assault hearings, a ruling that would seem to be in concert with the judge’s ruling in the Doe case. These rulings seem to foreshadow the U.S Department of Education’s new proposed regulations.

On April 4, 2011 the Obama administration Department of Education’s Office of Civil Rights (OCR) issued a “Dear Colleague” letter to provide schools guidance for how to handle cases of sexual misconduct and to protect victims of sexual assault. However, some have called for more clarity and more balance between protection of victims and due process for alleged assailants. Last year the OCR, under Secretary Betsy DeVos, canceled the Obama-era guidance and intends to narrow institutions’ responsibilities under Title IX and seek more balance between the rights of accusers and accused.

As this pendulum swings, administrations of private colleges would be well advised to attend to rulings and regulations imparting due process to Title IX.

This guest post was authored by Phillip Mitchell, a doctoral student in Higher Education Leadership at Oregon State University.  

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