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!