Considering campus sexual assault disciplinary issues, courts and legislators are beginning to emphasize due process requirements, including fairness protections for those accused that conceivably contradict protections aimed at preventing sexual violence. In addition to pending federal legislation on campus sexual misconduct, including sexual assault, 29 states have introduced or passed their own bills on the topic; virtually all of this legislation includes some nod to fairness as well as prevention provisions, such as the “yes means yes” laws passed in California and New York. Balancing those due process and complainant protections requires careful navigation of legal requirements.

Three recent cases emphasize potential challenges, with favorable outcomes for student-respondents in California, Tennessee and Virginia.

  • Doe v. University of California San Diego John Doe was accused by Jane Roe of sexual assault in January 2014. John Doe appealed the finding and suspension and was ultimately expelled from the institution. The trial court held that, among other reasons, because he was unable to cross-examine his accuser and instead had to submit questions through a hearing panel in advance, Doe’s due process rights had been violated. John Doe was allowed to return to the institution.
  • Mock v. University of Tennessee The court reinstated a student after review of the university’s disciplinary process allegedly revealed that the University required him to prove he obtained verbal consent for the sexual activity. The Court reasoned that absent a tape recording of verbal consent, the ability to prove consent strains credibility and is illusory.
  • Doe v. Washington and Lee University John Doe questioned the integrity of the process and the Title IX Coordinator’s objectivity in the case. The Court held that the gender bias lawsuit against the university could survive a motion to dismiss.

What this means to you

Faced with a tidal wave of federal and state legislation and new jurisprudence, colleges and universities are more susceptible than ever to litigation as a result of Title IX sexual misconduct investigations. It is imperative that institutions become actively involved in the political process at the state level to help ensure consistency between state and federal requirements. Finally, as the July 1, 2015, Violence Against Women Act deadline has come and gone, institutions should remain steadfast in following their new policies and procedures and ensuring due process afforded under the policy is provided to all parties during investigations.