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American College of Trial Lawyers on campus sexual assault investigations: ‘Under the current system everyone loses.’

By March 24, 2017

The American College of Trial Lawyers has released a new report criticizing the way claims of sexual misconduct are currently investigated and adjudicated on college campuses nationwide. They argue that the procedures used by these institutions lack basic fairness for the accused.

ACTL, an organization that “seeks to improve the standards of trial practice, professionalism, ethics, and the administration of justice” and selects only members who have demonstrated “the very highest standards of trial advocacy, ethical conduct, integrity, professionalism and collegiality,” acknowledges that colleges and universities are “in a double bind” when it comes to addressing sexual misconduct claims. Institutions risk both the loss of federal funding if the Department of Education’s Office for Civil Rights proceeds with an enforcement action under Title IX, and lawsuits from accused students who say they were “railroaded” through unfair campus proceedings.

Regardless, ACTL argues that schools must provide due process.

“ACTL believes that in a well-intentioned effort to address the significant problem of campus sexual assault, OCR has established investigative and disciplinary procedures that, in application, are in many cases fundamentally unfair to students accused of sexual misconduct,” the group’s report states.

“Under the current system,” ACTL writes, “everyone loses.” That includes victims, whose “experiences are unintentionally eroded and undermined.”

The group makes concrete recommendations for how schools can provide basic procedural fairness by adopting “a system that encompasses essential elements of due process,” all of which FIRE has previously endorsed:

a fair and impartial investigation and hearing by qualified factfinders, and granting students the right to be advised and accompanied by counsel, to be permitted some form of cross-examination, to examine the evidence, to receive adequate written factual findings, and to be found responsible only if the evidence satisfies the clear and convincing standard.

“These steps would enhance procedural justice and ensure the confidence of participants and the public in the fairness of Title IX investigations on campus,” the report concludes. FIRE agrees.

ACTL recommends that students be allowed to be “advised and accompanied by counsel,” but stops short of endorsing the active assistance of counsel for accused students. FIRE believes this is insufficient, particularly when the underlying campus charge involves allegations of unlawful misconduct. Because statements made in initial campus hearings may later be used against students in a court of law, limiting an attorney’s involvement to advising or accompanying a student is simply not enough. A lawyer’s active guidance helps ensure due process is respected to the benefit of all parties.

The report, which was approved by ACTL’s board of regents earlier this month, also includes a nod to FIRE in its historical overview of OCR’s influence on campus sexual assault investigations. ACTL included FIRE’s concerns about the “unnecessarily opaque and deeply troubling” language that we told OCR in a 2011 letter “invites the potential for abuse” when it comes to procedural fairness. The report also cites our work seeking clarity from OCR in that regard.

ACTL’s public comment on this issue is a welcome and important development. FIRE hopes college and university administrators take notice.