A Feather on One Side, A Brick on the Other: Tilting the Scale Against Males Accused of Sexual Assault in Campus Disciplinary Proceedings

On April 4, 2011, the Department of Education\u27s Officeof Civil Rights issued a Dear Colleague letter regardingTitle JX\u27s applicability to sexual violence on collegecampuses. This letter was sent to every college oruniversity receiving federal funding and instructedrecipients on how to meet their legal obligations. Some ofthe most important changes in the letter pertained to howschools must conduct their grievance procedures inadjudicatingsexual assault claims. First, the 2011 letterrequires that schools use a preponderance of the evidencestandard to determine the accused\u27s guilty or innocence. Second, the letter strongly discourages schools fromallowing the parties personally to question or cross-examine each other during the proceedings. Third, if aschool uses an appeals process, the letter requires thisprocedure be available for both the accused and theaccuser, meaning the accused could face the sameaccusation in disciplinary proceedings twice. This Notefirst establishes that students facing charges in suchcampus disciplinary proceedings have a right to dueprocess. The Note then argues that the latest OCRguidance for Title IX compliance does not afford accusedstudents sufficient procedural due process protections.Lastly, this Note suggests that, given the significant libertyinterests at stake in campus disciplinary proceedingsinvolving sexual assault charges, due process requires thatguilt be established by at least clear and convincingevidence, that accused students have an opportunity toquestion or cross-examine their accusers, and thataccusers should not be allowed to appeal an unfavorableoutcome

A Feather on One Side, A Brick on the Other: Tilting the Scale Against Males Accused of Sexual Assault in Campus Disciplinary Proceedings

On April 4, 2011, the Department of Education\u27s Officeof Civil Rights issued a Dear Colleague letter regardingTitle JX\u27s applicability to sexual violence on collegecampuses. This letter was sent to every college oruniversity receiving federal funding and instructedrecipients on how to meet their legal obligations. Some ofthe most important changes in the letter pertained to howschools must conduct their grievance procedures inadjudicatingsexual assault claims. First, the 2011 letterrequires that schools use a preponderance of the evidencestandard to determine the accused\u27s guilty or innocence. Second, the letter strongly discourages schools fromallowing the parties personally to question or cross-examine each other during the proceedings. Third, if aschool uses an appeals process, the letter requires thisprocedure be available for both the accused and theaccuser, meaning the accused could face the sameaccusation in disciplinary proceedings twice. This Notefirst establishes that students facing charges in suchcampus disciplinary proceedings have a right to dueprocess. The Note then argues that the latest OCRguidance for Title IX compliance does not afford accusedstudents sufficient procedural due process protections.Lastly, this Note suggests that, given the significant libertyinterests at stake in campus disciplinary proceedingsinvolving sexual assault charges, due process requires thatguilt be established by at least clear and convincingevidence, that accused students have an opportunity toquestion or cross-examine their accusers, and thataccusers should not be allowed to appeal an unfavorableoutcome