We come to this work, first and foremost, out of concern for survivors who are assaulted, harassed, or abused in school. As longtime advocates for student survivors, we know all too well that inadequate procedural protections such as untrained or biased decision-makers, rushed investigations, and opaque, unclear campus policies harm survivors and accused students alike. Accordingly, we reject the notion that justice for survivors is in tension with fair procedural protections for accused students. Campus responses to gender-based violence will only succeed if they are perceived as — and, in fact, are — legitimate, consistent, and fair to all parties.
Why We Value Fair Process
We fight to end gender violence in schools both to prevent violence and to tear down gender-based barriers to educational access. The opportunity to learn is fundamental to a student’s individual dignity and the key to achieving their dreams, and no one should be denied it because of harassment, violence, and discrimination.
These principles mean that we must fight for fair processes both for survivors, and for accused students. As advocates and survivors, we know firsthand that disruptions in education have lasting consequences for survivors who are forced to leave school because they don’t feel safe staying on campus with their perpetrators, but also in the case of an accused student unfairly facing suspension. Moreover, bare bones procedural protections harm all students and leave room for discrimination against both accused students and victims on the basis of race, ability, or a parent’s donation history. Know Your IX is committed to fighting for robust procedural protections for students on both sides of school sexual violence cases, because we believe fair process serves all parties and we seek to create a world where no student is ever unfairly denied the opportunity to learn.
Know Your IX supports fair, robust procedural protections for both complainants and respondents in campus gender-based violence proceedings. Below is a select list of fair process protections which Know Your IX advocates for:
Robust Procedural Rights for Both Parties: In student conduct cases, schools must ensure proceedings are prompt, equitable, and governed by consistent procedures. Schools should provide robust procedural protections to both alleged perpetrators and victims, including but not limited to:
- Timely and clear notice of both parties rights and responsibilities under school policy and applicable law, factual allegations, and procedural developments;
- Receive written or electronic notice, provided in advance and reasonable under the circumstances, of any meeting or hearing they are required or are eligible to attend;
- Review available evidence in a case file, with adequate time to consider and respond;
- Access to counsel who may assist and advise each party throughout the disciplinary process, in compliance with applicable law. If students are financially unable to independently access counsel, schools should be responsible for securing free legal consultation for them;
- Have a personal supporter of their choice, either in addition to or in lieu of an attorney, who may assist and advise any party throughout the disciplinary process, including all meetings and hearings related to such process, in compliance with the applicable federal and state laws;
- Have complaint investigated in impartial, timely, thorough, and trauma-informed manner by appropriately trained investigators;
- Provide testimony without encountering the opposing party and to view testimony provided by the other party. The school may use a range of options to provide for testimony, including videoconferencing or CCTV;
- Have findings of responsibility or non-responsibility for an incident of gender-based violence determined by a panel of 3-5 impartial and regularly and thoroughly trained decision-makers using a preponderance of the evidence standard;
- Reasonable opportunity, provided equally among the parties, to submit evidence, recommend witnesses, provide testimony at a hearing, and recommend for the other party and witnesses to investigators, hearing panelists, and other decision makers;
- Fair and proportionate sanctions;
- A written explanation of any outcomes, including but not limited to a finding of (non-)responsibility, sanction, or granting of an appeal;
- The opportunity to appeal in appropriate circumstances. The institution must review requests for an appeal in the same manner regardless of which party files the appeal and the appeals process must be prompt and equitable for both parties.
Preponderance of the Evidence: Title IX requires that schools use a preponderance of the evidence standard of proof in sexual harassment cases (i.e., it is “more likely than not” that the respondent committed sexual harassment or violence). Courts have long affirmed that this standard is the appropriate standard for adjudication of violations of civil rights laws, including Title IX. Furthermore, beyond civil rights litigation, preponderance of the evidence is the standard employed in most civil actions. Perhaps most importantly, the preponderance standard puts both parties (and their access to education) on equal footing, in keeping with Title IX’s equality mandate.
Schools Should Not Exceptionalize Gender-Based Violence
While Know Your IX has developed these recommendations in response to gender-based violence on campus, Know Your IX believes that educational institutions should respond to and investigate reports of gender-based violence in a manner consistent with their response to reports of other serious student code-of-conduct violations. Many of the principles outlined here are broadly applicable to reports of other forms of violence and harassment on campus.
Process and Title IX
Some critics of the movement to end gender-based violence on campus have suggested that Title IX, as interpreted by the federal Department of Education’s 2011 and 2014 guidance documents, violates students’ due process. These critiques misrepresent the law — namely that Title IX enhances procedural protections for accused students, rather than limiting them.
Title IX and the Clery Act provide respondents more robust rights than any other federal law, or the Constitution. For example, as the the Department of Education’s Office for Civil Rights (OCR) noted in its 2011 Dear Colleague Letter on sexual violence, to comply with Title IX schools must establish “adequate, reliable, and impartial investigation of complaints, including the opportunity for both parties to present witnesses and other evidence” — protections far more robust than the due process requirement of “some kind” of notice and hearing. Title IX and Campus SaVE further require that, as schools provide more procedural protections to complainants in disciplinary cases, they must also provide more procedural protections to respondents. For example, if schools allow survivors’ lawyers to participate in disciplinary hearings, Title IX requires schools to also allow accused students’ attorneys to do so, as well.
What’s more the Education Department’s Office for Civil Rights has intervened to protect the Title IX rights of students accused of sexual misconduct. For example, in October 2016, OCR found a Delaware college violated Title IX because the school “fail[ed] to provide procedural safeguards and equitable investigations” for accused students, including interviewing an accused student during a complaint and affording accused students full opportunity to provide evidence in disciplinary hearings. In other words, rather than limiting the procedural rights of accused students, Title IX provides, and OCR enforces, greater protections for accused students than they would have otherwise.
What We’re Saying
- Know Your IX Teach-In: Fair Process, Not Criminal Process
- Alexandra Brodsky, The American Prospect: Fair Process, Not Criminal Process, Is The Right Way to Address Campus Sexual Assault
What We’re Doing
- If you are interested in using our Fair Process recommendations in your advocacy and would like assistance, please contact us at info@KnowYourIX.org.
- In 2015, Know Your IX sent a letter to University Presidents across the country calling for higher education institutions to adopt key procedural protections for both parties, the accused and accusing student. Please view the full letter here.
- National Women’s Law Center: Letter to the Office for Civil Rights Regarding the Preponderance of the Evidence Standard
- Feminist Law Professors: Title IX and the Preponderance of the Evidence: A White Paper
- American Constitution Society National Convention 2015: A Discussion of Sexual Assault, Title IX Compliance, and Due Process
- Michelle Anderson, Yale Law Journal: Campus Sexual Assault Adjudication and Resistance to Reform
- U.S. Department of Education Office for Civil Rights: Questions and Answers on Title IX and Sexual Violence