News + Insights from the Legal Team at Zalkind Duncan & Bernstein

What Kind of Notice Should Universities Give Students Facing Title IX Charges?

In the world of disciplinary hearings under Title IX, the process for students accused of sexual harassment or sexual assault on campus often begins this way: an accused student (the “respondent” in campus disciplinary parlance) is called into a meeting with a school administrator and informed of a disciplinary charge that could result in expulsion. At most schools, the information that the school provides about the actual charge consists of the date of the alleged event (or a range of dates); the identity of the complainant (the student who is making the accusation) and the provision of the student code that the respondent allegedly violated, or another summary description such as “non-consensual sexual conduct.” In practice, this information is often not sufficient to allow the respondent to identify the actions that the school is investigating, particularly where the allegations stem from a long-term romantic relationship with the complainant, much less to prepare a defense. It also may not give respondents adequate notice to allow them to evaluate whether they may face criminal charges, and make informed decisions about whether to waive their 5th Amendment right to remain silent by making statements during the school’s investigation.

There is little statutory or regulatory law governing what level of notice schools are required to provide; however, the law that does exist suggests, in my opinion, that the notice frequently provided is legally deficient. Federal regulations that went into effect in 2015 require schools in sexual violence cases to provide a “prompt, fair, and impartial proceeding from the initial investigation to the final result.”  The regulations define such a proceeding as one that, among other things, “[p]rovides timely and equal access to the accuser, the accused, and appropriate officials to any information that will be used during informal and formal disciplinary meetings and hearings.” The regulation does not define “timely and equal access,” but my view is that “timely” access to information should include, at a bare minimum, a summary of the specific conduct that is alleged to have violated the school’s policies, provided at the outset of the process.

For students at public colleges and universities, the constitutional due process requirement may also demand more than the minimal notice frequently provided. Foundational Supreme Court precedent makes it clear that due process includes the right to notice, including “an explanation of the evidence the authorities have and an opportunity to present [the respondent’s] side of the story.”

Even for students at private colleges, where due process rights are not applicable, courts are beginning to express concern about lack of notice, particularly in cases where the plaintiffs allege that discipline meted out to them in Title IX processes was a violation of contract law because the process lacked basic fairness or was arbitrary and capricious. In April 2016, two courts in opposite sides of the country found that schools had failed to give students in Title IX proceedings sufficient notice of the allegations against them. One was a federal court in Massachusetts in Doe v. Brandeis, which my colleague Naomi Shatz has previously covered on this blog. There, the court held that Brandeis’s refusal to provide the respondent “with the specific factual conduct alleged to have given rise to the charge” at the outset of the process was one of a number of violations of basic fairness that, taken as a whole, were sufficient to allow the plaintiff’s contract claims to survive a motion to dismiss. In the other, Doe v. University of Southern California, a California appellate court held that a school had failed to treat its student fairly where, after investigating him for an allegation of nonconsensual sex, it found him responsible for a different violation (slapping the complainant), that he had never been informed was an allegation against him.

This week, the Brandeis and University of Southern California decisions are joined by an order of the federal court in the Northern District of Indiana in the case of Doe v. Notre Dame, in which the court granted an injunction to allow the plaintiff, a student that Notre Dame had found responsible for violations including stalking, to take his exams so that his education would not be unduly delayed if he ultimately succeeded in his lawsuit against the school. In holding that the plaintiff’s claims were strong enough to merit this result, the court gave significant weight to Notre Dame’s failure to give the student fair notice. In particular, as to the notice provided to the student at the outset of the case, the court noted that the “notice of charges” only informed him that “the incident alleged may be a violation of the University’s policies related to sexual assault, sexual misconduct, dating and domestic violence, stalking, and/or conduct that creates a hostile environment.” As the court held, “This amounts to no notice at all. It doesn’t tell him what he is alleged to have done wrong nor when the wrongdoing was alleged to have taken place.” The court found such notice to be deficient even at a private institution not subject to constitutional due process requirements.

These recent precedents, coupled with existing federal regulations and increased court scrutiny of due process in Title IX matters, should encourage colleges and universities to provide respondents with fair notice of charges that identifies not only the date and location of incidents but the actual actions that they are alleged to have taken.

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