By Jake New at Inside Higher Ed
Campus hearings, even when they’re regarding an activity as serious as sexual assault, are not courtrooms.
It’s a distinction that the U.S. Department of Education has embraced, requiring colleges to conduct their own investigations into claims of sexual assault, and to adjudicate those cases under Title IX of the Education Amendments of 1972. Colleges use “preponderance of evidence” instead of “beyond reasonable doubt” as the standard of proof. If a student is found in violation of campus rules, he or she is “responsible” for the misconduct, not “guilty” of a crime. The potential punishments are writing assignments, suspension or expulsion — not prison.
In the past, there were no lawyers or judges, just panels of faculty, students and administrators. But that’s beginning to change at some colleges, where outside judges — typically retired state judges — are being hired to oversee hearings. The hearings are still held under college rules, not state rules for courts.
Critics worried that campus sexual assault hearings are nothing but a kangaroo court that ignores the accused’s due process rights are praising the change. Some victims’ advocates, however, worry that turning a campus hearing into a courtroom could replicate the same perceived pitfalls of the legal system that have led many victims of sexual assault to turn to Title IX in the first place.
“There is a distinct subset of people in schools that are of the opinion that external adjudicators are the way to go,” Peter Lake, a law professor and director of the Center for Excellence in Higher Education Law and Policy at Stetson University, said. “I think people are experimenting with a variety of different models, and there are some who think that working with highly professionalized external adjudicators is the right pathway, especially in complex or high-profile cases. It’s uncharted territory. We’re essentially creating a college court system.”
Colleges that opt to use outside adjudicators, Lake said, don’t often advertise that fact, so it’s difficult to get a read on how common the practice currently is.
Brett Sokolow, president and CEO of the National Center for Higher Education Risk Management, said he couldn’t comment on which colleges use outside adjudicators, but noted that a few of NCHERM’s clients do use judges now. It’s not a system he recommends, though.
“I am hearing about it more,” Sokolow said. “Generally I don’t think judges are a good idea, as it makes the process more legalistic and held to higher standards in terms of later legal challenges.”
In 2013, Swarthmore College hired former Pennsylvania Supreme Court Justice Jane Greenspan to adjudicate cases of sexual assault there. Like most colleges, cases of sexual assault at Swarthmore were previously brought before a panel of students and faculty members. Under the previous system, Swarthmore faced lawsuits from both victims and accused students over how it handled sexual assault allegations.
In December, Florida State University hired retired Florida Supreme Court Justice Major Harding to adjudicate the hearing of Jameis Winston, the university’s star quarterback. FSU faced intense scrutiny over its handling of allegations that Winston raped a female student. The university was aware of the allegations for two years before scheduling the hearing.
By hiring Harding — a seemingly impartial party with no stake in the performance of the university’s football team — FSU hoped to avoid any further accusations that it was shielding Winston from being punished. John Banzhaf, a law professor at George Washington University, has long argued that colleges should use outside adjudicators to remain impartial. Banzhaf has also suggested creating regional consortiums independent of any one college that could be brought in to decide cases of sexual assault.
“Retired judges and others trained to evaluate evidence could better and more fairly, free from any possible biases, determine the truth, much better than professors of computer science or geology who today often make up the disciplinary panels on many campuses,” Banzhaf said.
Having experience as a criminal judge doesn’t always equate to having experience with campus administrative procedures, however, and the differences between the two can muddy the process. A transcript of Winston’s hearing in December revealed that Harding, the former Florida Supreme Court justice, and some of the lawyers acting as advisers to the students in the case were sometimes unaware of how the hearing was supposed to proceed, including whether lawyers were permitted to listen in on the hearing and who was meant to speak and when.
The university attempted to bring Harding and the advisers up to speed with a briefing about the process, according to the transcript, but the session wasn’t completed before the hearing began. Harding ruled that both students’ versions of the events were equally probable, thus the evidence was “insufficient to satisfy the burden of proof.”
“There is a challenge in getting somebody who is extremely talented as a jurist or an investigator, but isn’t perhaps specialized in Title IX training or campus culture,” Lake said. “That’s a little harder to pick up unless those folks are especially trained in it. There’s no question that we’re moving from a more amateur system to a more professionalized one, and if that’s happening we’re going to need to build a culture of professional individuals who are highly trained in both internal and external processes.”
Another way the campus model is becoming professionalized, Lake said, is the increasingly involved role of lawyers. In the past, accusers and the accused have been allowed to consult with lawyers, but only in an advisory role. That’s changing, too.
Inspired by fears that the federal government’s pressure on colleges to better investigate and adjudicate cases of campus sexual assault is leading administrators to trample on the due process rights of accused students, North Dakota and South Carolina are both considering legislation that would allow attorneys to more fully participate in campus proceedings on behalf of accused students.
North Carolina already passed a similar bill last year, and students in Arkansas now have the right to an attorney when appealing “nonacademic” suspensions or expulsions.
The Foundation for Individual Rights in Education called the North Dakota legislation “sorely needed,” saying that the bill would provide students with “a powerful new tool to ensure that their rights won’t be trampled on.” In a letter sent to state legislators in February, NASPA: Student Affairs Administrators in Higher Education disagreed, saying that the “approach ignores the balance set by the U.S. Supreme Court regarding the scope of accused students’ due process rights” under the Constitution.
Laura Dunn, executive director of SurvJustice, a victims’ advocacy group, said that that the involvement of legal professionals in Title IX hearings is a good thing, but that lawyers should not participate in the actual hearing. They should remain in an advisory role, said Dunn, who is herself a lawyer who attends campus hearings on behalf of victims.
Rather than shoehorning lawyers and judges into the campus model, she said, colleges should instead focus on making sure their employees are appropriately trained in legal and campus procedures.
“We’re not in a court, we’re in a hearing about a school’s code, and I think there is a value to not making it like a courtroom,” Dunn said. “This is not a criminal court or a civil court, it’s an administrative hearing. In some ways it makes sense to have outside investigators and to make sure Title IX coordinators are actual lawyers and make sure they’re complying with law, but those people don’t inherently need to be an actual judge.”