'They’re not prosecutors': Due process not always clear under Title IX

Due process — it’s a term that comes up again and again in campus sexual assault debates.

Recent reports on the Department of Education’s new draft regulations regarding Title IX have centered on how the proposals could strengthen due process for accused parties in sexual misconduct investigations.

Since withdrawing Obama-era rules on how colleges should handle sexual assault cases last year, Secretary of Education Betsy DeVos has emphasized her commitment to bolstering due process in Title IX investigations to protect the rights of the accused. This raises questions about what due process actually looks like in Title IX investigations in comparison to due process applied in the regular American judicial system.

Under the Fifth Amendment, due process can be broadly defined as the Constitutional guarantee to a fair trial.

Adrienne Allison, the UNC director of Title IX Compliance, said due process in Title IX investigations is about ensuring equal treatment to both the responding and reporting party during University procedures.

“For us, maintaining a fair and equitable procedure is essential to the integrity of our process,” Allison said.

Because Title IX investigations vary from college to college, due process rights can vary as well. As long as the procedures are applied equitably to both parties, it is considered due process, said Shan Wu, a former federal sex crimes prosecutor with a focus on student defense, who is now in private practice in Washington

Benjamin Lankford, a Raleigh defense lawyer who has worked on Title IX cases, said criminal trial proceedings guarantee far more due process rights than Title IX investigations, which creates problems for the accused parties. 

“You don’t have access to these other rights, so due process can be satisfied in a Title IX context with very, very bare minimum procedures safeguarding the policy,” Lankford said. “The reality is, if you want to challenge due process of a Title IX hearing, you’ve got to lose the Title IX hearing and then sue the school and go to court saying your due process rights were violated.”

The law hasn’t clearly defined what due process always looks like within universities, said Maya Weinstein, a UNC School of Law student and chair of the Carolina Sexual Assault Coalition.

“The court has said that if there is the possibility of suspension or expulsion, students deserve notice and a fair hearing, but what a fair hearing is looked like — which is what is being debated when it comes to Title IX — isn’t exactly defined, and that’s why it varies,” Weinstein said.

Allison said due process is ensured at UNC by granting both the reporting party and responding party an equal opportunity to be heard by a neutral Title IX investigator, as well as the opportunity to submit relevant information and to identify witnesses. Both parties have equal opportunity to have a support person and/or an advocate, such as an attorney, to accompany them throughout the process.

Other due process rights include time limits for investigations, hearings and outcomes so both parties are aware of how to operate on campus, Weinstein said.

According to UNC procedural policies, both parties may also request a hearing on the findings and/or sanctions if the investigator finds a violation has occurred. Both parties may also appeal the outcome.

Such hearing panel is comprised of three “trained” individuals at UNC, excluding students. The specific kind of training the policy refers to is unclear.

A lack of proper training can often lead to investigations of poor quality, Wu said.

Wu said the individuals involved in investigating or deciding Title IX cases at colleges often lack  sexual assault or legal training.

“The process you get is going to be very much dependent on who’s able to apply it, and what kind of skills and training they have,” Wu said.

In contrast to the regular judicial system, Wu said attorneys in Title IX investigations cannot speak for their client during hearings. There are no judges, and witnesses often don't swear to tell the truth.

Wu said he doesn't usually see violations of due process in Title IX investigations. Rather, he believes the problem lies in the inconsistent quality of investigations.

“It may technically be due process, meaning you’re giving each side the same benefits, same rights, but in terms of the quality, it’s not going to be at all comparable to the court proceedings and not comparable either to the professionalism that a sex crimes detective will bring to it,” Wu said. 

One way universities deal with a lack of legal training is lowering the burden of proof to the “preponderance of evidence” standard to determine if a student will be found responsible of sexual misconduct.

This standard means the evidence indicates that it is “more likely than not” that the accused student committed the offense, Allison said.

Despite how investigations vary in quality compared to court proceedings, sexual assault will never go away on college campuses, Weinstein said, so universities must work around this.

“No matter what, this is going to be addressed on campuses,” Weinstein said. “Schools are going to have to deal with this, and schools are not investigators. They’re not the police. They’re not any form of law enforcement. They’re not prosecutors.”

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