Friday, Oct 19, 2018
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Due process on campus


In 2011, the U.S. Department of Education Office for Civil Rights told colleges and universities that giving too much due process to students accused of sexual misconduct violated Title IX, the federal law prohibiting sex discrimination in education. Now OCR says giving those students too little procedural protection can violate Title IX too. That’s an improvement.

Earlier this fall, OCR announced its findings against Wesley College. Among other things, the agency said the school mishandled the case against a student it expelled — a student the victim in the case believes is innocent.

According to OCR, the school did not give him enough information about the charges against him to build his case. And that was just one of the ways it fell short of equitable treatment.

The student was accused of being involved in the nonconsensual livestreaming of an act of otherwise consensual sex. But the victim said she didn’t think he was involved. And after the campus hearing, the other three students who were expelled for the same offense told the victim they were indeed guilty — and he wasn’t.

The charges are serious. The sanction was serious, as it should have been. But that’s exactly why it’s important to make sure the accused is actually guilty. The main reason we need due process is to make sure you don’t get punished if you’re innocent.

OCR’s published letter shows that it is willing to enforce a due process requirement through Title IX. That requirement seems to include at least three details:

One, a school must tell an accused what the specific allegations are, so that he can rebut them. It may have to give him the evidence too.

Two, it must give him a reasonable opportunity to present his side of the story.

And three, though a college must consider imposing restrictions on the accused while the case is pending, it also has to listen to the accused’s side of the story at that preliminary stage. It must weigh the rights of the accused as well as those of other students before imposing an interim suspension.

OCR has long given lip service to the idea that both victim and accused must be treated equitably. And it says its recent decision is not the first time it has said a school violated Title IX by denying an accused student adequate procedures. But according to Inside Higher Ed, the earlier case OCR cited was principally focused on sexual-misconduct victims. In this case, the complaint to OCR was brought by the mother of an accused, not an alleged victim.

Even if federal law said nothing about it, colleges would be obligated to provide due process in sexual-misconduct cases, lest they punish innocent students, as Wesley seems to have done here. A college hearing board cannot imprison an accused, but it can take away the educational opportunities he has earned, cut him off from his community, and impose a stigma that can deny him future opportunities. It should not impose these life-altering consequences without substantial evidence that has withstood close scrutiny. It should give the accused a meaningful chance to defend himself.

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