Last week, Occidental College entered into a resolution agreement with the Department of Education’s Office for Civil Rights, concluding OCR’s investigation of the college’s sexual misconduct policies and practices. OCR found insufficient evidence that Occidental violated Title IX, “except with respect to the issue of promptness in several cases during the 2012-13 school year.” The findings letter accompanying OCR and Occidental’s resolution agreement, however, suggests OCR may be confused about what it means to afford an accused student due process.
In short, OCR seems to approve of the idea that due process can be achieved after a questionable hearing by simply lessening the repercussions an accused student suffers.
As the findings letter notes, “The OCR complaint … alleged that when [two] respondents appealed their sanctions, the sanctions were reduced without basis.” In one case, the sanction was reduced after the hearing panel reconsidered the case due to a procedural error and found him responsible for a lesser offense. In the second case, the dean of students “agreed that the respondent was put at a disadvantage procedurally because he was not allowed at any time to face the hearing panel,” having been “required to participate in the hearing by Skype for the entire proceeding.” She therefore reduced his sanction “in the interest of justice.”
OCR explained its conclusion that these actions were appropriate:
OCR determined that the dean’s decision to reduce the sanction balanced due process concerns and Title IX obligations and was not substantially disproportionate. In the two instances where the respondents’ sanctions were reduced after appeal, the evidence showed that the College was attempting to balance the due process rights of the respondent with the rights of the complainant; the complainant was notified and given an opportunity to provide input. The modified sanctions were still within College guidelines.
It is welcome to see an acknowledgment from OCR that colleges should consider an accused student’s due process rights in determining how to handle allegations of sexual misconduct. But a reduction in punishment is not the correct solution to a lack of procedural safeguards and a potentially unreliable finding of fact. If an accused student has not been given a fair hearing, and procedural errors subsequently call into question the accuracy of the outcome, the correct remedy is a new hearing through which fact-finders may reach a more reliable conclusion.
Occidental’s alternative solution ensures that an accused student will not be treated as he or she deserves—whether they are guilty of one of society’s most heinous acts and deserve harsh punishment, or are innocent and deserve no punishment at all. Instead, it facilitates meting out light punishment to a set of individuals that almost inevitably will include both guilty and innocent students, as if justice were something that could be effected by averaging the culpability of all respondents.
Students and victims’ advocates have long objected to what they perceive as insufficient punishment of college students found responsible for sexual assault. Complainants in the Occidental case brought that same objection to OCR. But applying lighter sanctions because a college is unsure that a finding of responsibility is reliable will only worsen this dissatisfaction with the current system. Allegations of sexual assault should be adjudicated through a system that is designed to achieve fair conclusions—the criminal justice system—so findings of guilt can be followed by appropriately harsh penalties.
Regardless of whether assault allegations are handled by the courts or by campuses, though, it is essential to remember that due process protections must be provided before the fact-finders reach their conclusion. A fair hearing can be achieved by incorporating meaningful procedural safeguards like the right to cross-examine one’s accuser, the right to active assistance of an attorney, a presumption of innocence, and an appropriate standard of proof. But all this protects the accused against an unfair finding of guilt. Due process cannot be achieved after that finding has already been made by retroactively attempting to match the severity of the accused student’s punishment to the (un)reliability of a finding or the (un)fairness of a hearing.
Given how easily colleges have been influenced by OCR’s resolution agreements with other colleges to infringe on students’ rights, it would not be surprising if colleges took this passage as permission to follow Occidental’s lead. To do so, though, would be a step in the wrong direction for everyone: accused students, alleged victims, and the community at large.