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Information on this site is for educational purposes only and is not intended as legal advice. If you have a legal problem, consult your institutional counsel or an attorney licensed to practice law in your state. Information and views presented in this blog are solely those of the individual contributors and not their employers.

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When Do Students Pose a Threat and What are the Institutional Mandates and Authority to Respond?

The intersection of student welfare and student responsibility that exists between Behavioral Intervention Teams and student conduct offices is a complex proving ground for balancing several legal and ethical issues in the rights of individual students. Decision makers in these spaces must consider the mandate for higher education institutions to protect the safety of the broader community. Recent cases, such as Regents of the University of California v. Katherine Rosen,have made national news and have garnered significant interest in higher education circles regarding the duty to protect based on the special relationship that exists between students and the institution where they are enrolled. In the Rosencase, the California Supreme Court affirmed that “universities have a special relationship with their students and a duty to protect them from foreseeable violence during curricular activities”. At the same time, Barnes v. Zachary affirms that institutions of higher education cannot suspend or expel a student without due process even if officials consider the student to be a “clear and present danger”. 

Where does this leave institutions of higher education when balancing the rights of individual students and the safety of the broader community? The 2011 changes to Title II of the Americans with Disabilities Act defines a direct threat as “A significant risk to the health or safety of others that cannot be eliminated by a modification of policies, practices or procedures, or by the provision of auxiliary aids or services” and defends adverse actions taken against students who pose such a threat against the health or safety of others. This change in provisions has allowed higher education institutions to take adverse action regarding students who present a direct threat without a heightened risk of a discrimination lawsuit provided that their polices are focused on conduct rather than disability, ensure that an individualized assessment is made, consider reasonable accommodations, and ensure due process to a student even if such due process is granted following immediate removal in exigent circumstances. Importantly, the direct threat definitions have only been applied to a threat to others and not a threat to self. 

Given the special relationship, limited duty to protect, and the need to protect the due process rights of individual students, institutions of higher education will continue to need to invest significant time and infrastructure into finding the proper balance. There are already a multitude of federal regulations that place the onus of safety on colleges and universities (see Clery ActTitle IXDrug-Free Schools ActHigher Education Opportunity ActCampus Sex Crimes Prevention Act, etc.). It is likely that as in the Rosen case, courts will continue to defer towards institutional responsibility for campus safety and that “public colleges should focus more on preventing violence than getting sued.”Where the lines will be drawn on when a direct threat exists and when circumstances are clear and present enough to warrant delayed due process will likely continue to be a subject of debate in higher education circles and the court of law. What should take precedent? Student rights to due process, student rights to protection from students who pose a threat, or some combination of the two?

This guest post was authored by Mr. Eric Scott,  Dean of Students and Campus Life at the University of Alaska Southeast in Juneau, Alaska, and is currently a doctoral student in the Oregon State University Adult and Higher Education Program.


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.  


Title IX Approaches the Bench: Cross-Examination in Sexual Misconduct Hearings

Imagine that you are sexually assaulted. I know that it’s terrifying. And, I know that some of you don’t have to imagine. All you want is to be able to graduate without having to see this person again. Imagine that you report what happened to college officials, and after no contact orders, housing reassignments, and meeting with investigators, you attend the hearing to hear what the school you attend will do in response to this person’s behavior. Only first: their attorney will ask you questions, trying to cast you in the worst light possible. They will suggest that not only did you want what happened, but also that you enjoyed it. If that leaves a bad taste in your mouth, I understand. That experience is a known part of the criminal system, where at the end a decision is made about how much jail time (likely not much) will be meted out, but it has been absent from educational processes since the 2011 Dear Colleague Letter. That experience, or something hauntingly similar is likely to be coming to a campus near you.

As soon as September, colleges and universities will need to relearn how to address sexual misconduct allegations under new guidance from the Department of Education. Arguably the most controversial element of this guidance is that colleges and universities are required to allow for cross-examination of complainants and witnesses at a live hearing: something the 2011 DCL argued constituted further harassment towards the complainant. In the proposed guidance, the accused would not be permitted to do this themselves but would have their advisor perform the cross-examination.Experts and advocates for survivors have advised that this is bad practice and may “chill” reporting on campus. Simultaneously, these changes are being heralded by advocates for the rights of accused. Additionally, recent court decisions have added weight to the requirement of cross-examination in cases where the decision comes down to determining the credibility of two differing accounts. In the middle, are the colleges and universities trying to find a way forward that is both fair, and responsive to the needs of survivors.

Prior to Dixon v. Alabama, institutions of higher education acted in loco parentis, and were not required to provide due process when making decisions on discipline. Despite not being state actors, the protections employed by state universities were soon mimicked by private institutions as well. In the decades that followed, student conduct at college campuses became quasi-judicial proceedings, both overusing and misunderstanding legalistic rules and procedures, according to experts. Modern student conduct has evolved into educational processes that aim to educate those found responsible for violations of policy, while maintaining the needs of the community. Cross-examination is not a typical procedure in any student conduct case, as campuses are not meant to be courtrooms. By requiring cross-examination in Title IX cases, student disciplinary hearings risk regressing to the quasi-judicial proceedings of the past. Additionally, while many imagine the cross-examination being conducted by a trained attorney, in most cases the accused are advised by parents, friends, or coaches. As are the complainants, whose advisors ALSO have a right to cross-examine the accused and potential witnesses.

Imagine that you are accused of sexual assault. I know that it’s terrifying. And, perhaps, some of you don’t have to imagine. All you want is to be able to graduate. Imagine that, after no contact orders, housing reassignments, and meeting with investigators, you attend the hearing to hear what the school will do, only first: the father of the person who accused you will ask you questions. 

If that leaves a bad taste in your mouth, I understand.

This is a guest post from Kevin Carmody, Title XI and Civil Rights Officer at Alma College and Ph.D. Student in Educational Leadership at Central Michigan University. 


Revocation of the 2011 Dear Colleague Letter: Who was it protecting?

In the era of #MeToo, the public is more aware than ever about sexual violence; but what about college campuses? Approximately 13,224,000 women will be attending degree-granting institutions in the United States (U.S.) in the fall of 2019.  At a time when college women are three times as likely to experience sexual violence, and only a small percentage are reporting these incidents to authorities due to embarrassment, concern it was not significant, or it would not be investigated or taken seriously, all students need a safe and equitable environment to live and learn.  How do college campuses balance these responsibilities?    

The higher education community is still waiting for final guidance from the U.S. Department of Education Office for Civil Rights (OCR) on campus sexual misconduct. Despite Executive Order 13777 garnering 16,376 public comments, of which 99% supported Title IX and 97% supported upholding the 2011 Dear Colleague Letter on Sexual Violence, OCR published a Dear Colleague Letter on September 22, 2017, withdrawing the 2011 Dear Colleague Letter and 2014 Questions and Answers on Title IX and Sexual Violencestating the documents did not provide clear guidance for institutions or equitable Title IX inquiries for both parties.  In the interim, U.S. Secretary of Education, Betsy DeVos released interim guidance on campus sexual misconduct.  In November 2018, OCR released a Notice of Proposed Rulemaking to make these changes official.  

Some say that colleges may be the most direct beneficiaries of the changes, allowing them more leniency in their policies and procedures.  Proponents of the changes say it decreases liability of colleges, which would allow them to increase support to victims, and improves the rights of the accused. Critics of the Proposed Rulemaking, including the American Civil Liberties Union (ACLU) and the National Women’s Law Center, were particularly concerned with the mandatory cross-examination by advisor, which all students may not be able to afford, the narrowed definition of sexual harassment to only ‘pervasive and egregious behavior’ and the requirement of colleges to only investigate claims reported to the proper official and that occurred within a college’s program or activities (i.e., not off-campus).  In addition, some are concerned that it may discourage sexual assault survivors from reporting incidents, although that was not the new policy’s purpose.

            Marshall University has had a series of Title IX lawsuits, filed against them due to their alleged mishandling of campus sexual assault cases.  In one case, Gonzalez v. Marshall University Board of Governors, a student was repeatedly exposed to her attacker, while he remained on campus.  In addition, during the student conduct hearing, the accuser was aggressively cross-examined by the accused’s private attorneys, while she did not have counsel present.  Also, the hearing was not conducted by properly trained individuals, and physical evidence was not permitted due to the ongoing criminal trial.  The accused later entered a Kennedy plea (see Kennedy v. Fraiier) in the criminal case, which created a loophole for him to return to the university based on their policies, and the accuser left the university as a result.  Similarly, Doe 1 v. Baylor University was a case filed by 10 former students that accused Baylor of not adequately investigating their claims of sexual assault. While their Title IX claims were denied due to statute of limitations, their state-law claims of negligence and breach of contract were upheld. 

Sexual violence on our college campuses is an epidemic, and Title IX’s aim is to protect students and employees and provide a more equitable learning environment.  Title IX is not perfect but was revoking guidance that clearly had public support the answer?  Do universities need more leniency in application of Title IX?  Does the government need to provide the necessary training and resources to enforce the regulations that were already in place?  In the end, who was revocation of the 2011 Dear Colleague Letter ultimately protecting?   

This is a guest post from Nicole Hacker, a PhD student and research graduate assistant in the Department of Educational Leadership at Central Michigan University.



Educational System Unprepared to Accommodate Unaccompanied Migrant Children

In recent news events, the public has been notified on the influx of immigrants from Central America coming to the U.S. for security and stability. The caravan of migrants includes children that are unaccompanied by their parents (or legal guardians) and at times are traveling alone with a family member or a hired guide. In 2015, the Migration Policy Institute (MPI) reported that 102,000 unaccompanied migrant children from Central America and Mexico had crossed the border; however, this number has increased in the past recent years. Why are these children coming to the U.S. unaccompanied? Christopher Nugent stated that these children are “fleeing from persecution [from government or gangs]; some have experienced abuse, neglect and abandonment [from one or both parents]; some may have been brought by adults to the United States intent on exploiting them [as cheap labor or for commercial sex]; and still others are looking to reunify with their parents or relatives.” The Supreme Court ruling in the case of Flores v. Reno gave the children the opportunity to be released from custody and given a fair due process in the courts. Some of the children qualify for trafficking visa, asylum, or a special juvenile status.

So, what happens when the children are released into the general public? Some children are released to sponsors (parents, family or friends) that will care for them and children without sponsors are taken in to care by the Office of Refugee Resettlement (ORR) through special care programs, according to Nugent. In any situation, the children have to be enrolled and attend school as required under state law and specified in ORR Enrollment Guide. Further, under the Supreme Court decision of Plyler v. Doe in 1982, the Court ruled that a free K-12 education could not be denied to undocumented children nor their legal status could be questioned. 

But how prepared is the K-12 educational system to receive and provide services to migrant children? MPI points out the importance of programing, such as, English as Second Language (ESL) courses, bilingual services, training teachers, and job skill development programs for those minors that are aging out. The matter of youth aging out from receiving a high school education or degree leaves little to no opportunity to further receive a higher education. There are some programs designed for these students to receive non-traditional educational services after aging-out but can only cater to a selective few. Nevertheless, K-12 educational systems need to be better prepared to serve this population to decrease the educational gap for Latinx students.

This guest post is authored by Alejandro Gradilla, a Ph.D. student in the Educational Leadership program at Central Michigan University.