Campus Sexual Misconduct Investigations: Procedural Quicksand for Students January 18, 2016

College students facing allegations of criminal misconduct must navigate not only campus disciplinary proceedings, but also the criminal investigatory process.  During this period, it is critical that the students’ participation in disciplinary proceedings does not jeopardize their rights in a criminal investigation.  All too often, students struggle with identifying when to explain their version of events versus when to say little.  In student disciplinary proceedings, students do not retain the same due process rights as an accused in a criminal prosecution.

Campus sexual assault cases are an especially complex minefield due to the impact of Title IX and the Clery Act.  The United States Department of Education has instructed colleges and universities to address these cases with heightened scrutiny.  In addition to being required to report extensive statistics related to campus sexual violence, colleges and universities have been instructed not to wait for a criminal investigation and/or prosecution to conclude before addressing student disciplinary cases involving sexual misconduct.  Institutions are advised to work with campus police and local law enforcement offices during their investigations.

Defending students accused of sexual assault often requires immediate action and investigation.  These matters are time-sensitive and require a swift response to locate and preserve evidence.  In our digital age, social media, text messages, and emails take on particular importance in these cases.  Expert witnesses may also play a unique role in defending against allegations of student misconduct.  While preparation is key, sometimes student are given only a few weeks to respond to the charges.

In our extensive experience handling these matters, we find that often the “punishment” precedes the adjudication.  For example, a student might find him or herself excluded from a particular dining hall, library, or other campus location.  Or, a student might even be removed from an athletic team or other extracurricular activity as a “precautionary measure” while the Title IX investigation is pending.  These peremptory exclusions and removals often leave students feeling vulnerable and unfairly punished by the educational institution that they selected over other institutions.  These due process shortcomings are being challenged in litigation in state and federal courts around the country.

Recently, reported on investigations conducted by the U.S. Department of Education at Cleveland State University, Ohio State University and Oberlin College for possibly violating Title IX law.

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