Yesterday, the Philadelphia office of the Department of Education’s Office for Civil Rights (OCR) issued a resolution agreement with Wesley College concluding that the small Delaware institution had discriminated against a male student expelled for sexual misconduct “when it subjected him to an inequitable grievance and appeal process.” The resolution agreement documents a number of procedural deficiencies the agency found not only in the college’s treatment of the male student, but also in other complaints of sexual misconduct Wesley processed from August 2013 to August 2015.
The resolution agreement is notable for its unprecedented focus on the protections due to a student accused of sexual misconduct. As Erin Buzuvis of the Center for Gender and Sexuality Studies at Western New England University told Inside Higher Ed, the agreement is “the first time that the agency has found Title IX violations in response to a complaint by a disciplined student.”
Buzuvis further told Inside Higher Ed that she was “not particularly surprised by the outcome, in the sense that it is justified by the facts.” Likewise, attorney Justin Dillon, who filed an Administrative Procedure Act lawsuit sponsored by FIRE against OCR earlier this year, told Buzzfeed that Wesley’s “violations of its own policies—such as its failure to even show the complainant the evidence against him—were so flagrant that even OCR had little choice but to come down on it.”
FIRE strongly agrees. As I told Buzzfeed, Wesley College’s treatment of the accused student was profoundly unfair, denying him several important procedural protections he should have been afforded per the school’s own Title IX Policy and Procedures.
Perhaps most egregiously, the accused student was denied the chance to tell his side of the story. After being accused of “planning and implementing the live streaming of a female student engaged in a sexual act with another male student,” the student was expelled for sexual misconduct—but, per OCR, he “was not given an opportunity to share his version of events and to benefit from an investigation of the accuracy of that version of events.” Despite the fact that Wesley’s policies promise that administrators will interview all parties and witnesses, OCR found that the accused student was never interviewed.
The harm from this error was compounded by Wesley’s failure to provide the accused student the evidence against him, including a copy of the incident report and the findings of the school’s investigation. Access to these materials is promised by the school’s policy, as is the right to question witnesses—but the accused student wasn’t afforded that opportunity, either. OCR found that “[a]lthough the Title IX Policy and Procedures states that all parties are to have ample opportunity to question all witnesses during the hearing, the accused Student was not made aware of this testimony by Student 1 at any time during the hearing or thereafter, and was never provided with the opportunity to question Student 1 regarding his testimony.”
Wesley’s seeming inability to follow its own procedures was made still worse by the fact that the college somehow failed to provide the accused student with an up-to-date copy of those procedures. Instead of sending him the Title IX Policy and Procedures—implemented in February 2015, two months before the student’s hearing and expulsion—the school sent him the 2014–15 Student Handbook. Unsurprisingly, this error proved consequential, as detailed in the agreement:
Even though staff interviewed by OCR averred that the applicable policy at the time of the incident was the Title IX Policy and Procedures, this was not provided to the accused Student during the investigation and/or resolution of the complaint against him. The accused Student told OCR that it was his understanding that he should follow the Student Conduct Procedures set forth in the Student Handbook because Administrator 2 provided him with a link to it as further information and guidance. More specifically, because the Student Conduct Procedures set forth in the Student Handbook called for an educational conference as the first step in the student conduct process, he explained to OCR that he believed that the hearing scheduled for April 7, 2015 was either an informal hearing, the educational conference, and/or the Resolution without a hearing process detailed in the Student Conduct Procedures, and, therefore, he was not sufficiently prepared at the hearing.
The accused Student did not bring any witnesses to the hearing, but he provided a letter of support from two of his professors. As stated above, the accused Student stated that he did not bring witnesses to the hearing because he did not believe that the April 7, 2015 hearing was the final step in the process; rather, in accordance with the Student Conduct Procedures set forth in the Student Handbook that was sent to him as a link on April 2, 2015, he believed that the April 7, 2015 hearing was an educational conference and/or Resolution without a hearing.
Because the accused student didn’t receive his “educational conference,” he was also denied the opportunity to pursue other available resolution options provided by college policy and made available in that meeting.
OCR also took issue with Wesley’s apparent haste to expel the accused student. Just a week after receiving the charge against him, the accused student was expelled—which, in an understatement, OCR recognizes as a “substantial penalty.” Noting that the “[c]ollege[‘s] own procedures allowed it to take more time,” OCR concludes that the accused student “may not have been provided sufficient time to participate in the process.”
OCR’s investigation revealed that these fundamental errors weren’t unique to the accused student’s ordeal, but were replicated in other complaints the college fielded. For example, in 10 of the 12 complaints received during the period between August 2013 and August 2015, the conduct process was concluded in “a matter of days.” As OCR notes, “the College’s expedited investigation of complaints of sexual harassment and sexual violence may have compromised the equity of such investigations.” That’s putting it mildly, if the accused student’s experience is representative of Wesley College’s practices—and it appears to be, given OCR’s findings.
OCR also found that Wesley routinely imposed interim suspensions upon accused students immediately, seemingly as a matter of course and without procedures to determine whether the suspension was warranted. The agreement states:
Specifically, OCR has concerns that the College may not be affording accused students their basic procedural protections by imposing immediate suspensions without conducting a sufficient assessment of the risk to the community, while also considering the rights of the parties, including the accused student. The equitable principle in Title IX requires the College to consider a variety of factors in weighing whether an interim suspension is an appropriate interim remedy, given the potential educational impact of an interim suspension on the accused student. These factors include, for example, circumstances that suggest a risk to the greater College community, and the existence of risk that the accused student will commit additional acts of sexual harassment or sexual violence. Other factors to consider are whether there have been other sexual harassment or sexual violence complaints against the same accused student, whether the accused student threatened further sexual harassment or sexual violence against the victim or others, and whether the sexual harassment or sexual violence was committed by multiple perpetrators. It is not clear, however, from the documentation provided by the College that it reviewed or assessed any of these factors, or others, in any of the incidents in which an interim suspension was imposed.
Finally, OCR also found significant flaws with the training received by Wesley’s Title IX personnel and the school’s record-keeping practices.
OCR’s Title IX analysis of these serious failures rests on the agency’s reading of 34 C.F.R. § 106.8(b), one of the statute’s implementing regulations, which requires institutions to “adopt and publish grievance procedures providing for prompt and equitable resolution of student and employee complaints” of sexual discrimination. In determining compliance with this requirement, OCR reviews “whether the College’s grievance procedures for the resolution of complaints, such as those utilized for this complaint, are prompt and equitable and have been properly implemented.” (Emphasis added.) In the case of the accused student, OCR found that “the College’s deviation from its own process, as well as from process that would be consistent with Title IX, in the conduct of the hearing itself prevented the accused Student from receiving equitable treatment as required by Title IX.”
Under this reasoning, an institution’s failure to follow its own procedures may give rise not only to a breach-of-contract claim from an accused student, but also to an OCR investigation, as well. My colleague Samantha Harris has been chronicling the rapidly evolving legal landscape for claims brought by students accused of sexual misconduct against their colleges; this OCR resolution agreement provides another possible avenue of redress.
Under the agreement, Wesley will complete its investigation in a manner that corrects the many errors found, review its treatment of the accused student, and, “if warranted,” remove the expulsion from the accused student’s record, allow the accused student to complete his degree, reimburse the student for costs to enroll elsewhere, “and any other appropriate measure.” (As FIRE and others have discussed elsewhere, OCR’s authority to impose monetary remedies is unclear.)
The bottom line is that this resolution agreement is not a sufficient corrective to OCR’s longstanding inattention to fundamental fairness, a failing that FIRE and other civil liberties organizations have critiqued extensively throughout the past five years. Despite the welcome recognition of basic procedural protections here, the blame for these failings is properly laid at OCR’s doorstep. OCR hasn’t discussed procedural protections with any real emphasis or specificity in the past five years, so it’s hardly surprising that in a rush to comply with OCR’s unclear and shifting pronouncements, Wesley administrators followed OCR’s lead and likewise neglected fundamental fairness. Given the many similarities between the procedural failures found by OCR here and those alleged by accused students in lawsuit after lawsuit over the past few years, chances are that Wesley College’s failings are far from unique.