Post on 17-Dec-2015
Professor Peter LakeCharles A. Dana Chair, Director of the
Center for Excellence in Higher Education Law & Policy, Stetson Univ. College of Law
2014 Campus Safety and Violence Prevention Forum
Compliance and the Constitution in Conflict:
Title IX, Due Process and the First Amendment
Compliance with 4/4/11 Dear Colleague Letter (DCL), et seq. (Montana and Yale Resolutions, SaVE Act)
Rectifying Regulatory Mandates with:Supreme Court Interpretation of Title IXDue ProcessState Contract Rights RequirementsState Administrative Procedure Acts (APA)
Heading for Process Battles in the Courts
Due Process Challenges
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Impartiality Tenure?LawyersAppealsStandard of Proof
Title IX standard in court?A change for some IHE’s.“New” mandate?
Enhanced Enforcement by Depts. of Ed. and Justice
Expectation of More Enforcement by Colleges
Challenges of Complying with Regulatory Mandates: Creating College Sexual Assault “Courts”
• Evidentiary Issues• “Consent”• Withdrawals in
Advance of Adjudication
• False Accusations• “Jurisdiction”
– On/off campus– Responsibilities under
Title IX, but no grant of jurisdiction per se
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Gebser v. Lago Vista Independent School Dist., 524 U.S. 274 (1998).
Davis v. Monroe County Bd. of Ed., 526 U.S. 629 (1999).
The U.S. Supreme Court on Title IX Private Enforcement
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Will the U.S. Supreme Court finally provide college due process mandate?
Brief history and myths of college due process:Dixon v. Alabama, 294 F. 2d 150 (5th Cir. 1961).Goss v. Lopez, 419 U.S. 565 (1975).Bd. of Curators of Univ. of Missouri v. Horowitz, 435
U.S. 78 (1978). Regents of Univ. of Michigan v. Ewing, 474 U.S. 214
(1985).Kent State and Codes
Protected interests of life, liberty, propertyLiberty = ReputationSexual assault :: reputational injury
State Action
College “Courts” and Due Process
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Mathews v. EldridgeSubstantive/Procedural Due ProcessThe Title IX college court model does not
provide criminal due process protections:Evidence Jury ConfrontationDiscoveryBurden of ProofRight to CounselImpartial judiciaryInvestigations
College “Courts” and Due Process (cont’d)
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Handbooks/Codes“Substantial Fairness”McCormick et al. v. Brown University et al.
Brown Univ. asked to supply donor recordsJohn Doe v. Sewanee: The University of the South
Jury awarded $26,500 to student. Sewanee found negligent in handling of disciplinary hearing and investigative process.
Honor SystemsCentralized Command
College “Courts” and Contract Rights
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Some states require compliance with state APA
Potentially inconsistent mandatesFederal supremacy?Consult counsel
College “Courts” and State Administrative Procedure Acts (APAs)
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Join me for a further discussion:
We Can Do Title IX Compliance Better Than You!
Thank You!