Sexual Assault on College Campuses: Seeking the Appropriate Balance between Due Process and Victim Protection

By Triplett, Matthew R. | Duke Law Journal, November 2012 | Go to article overview

Sexual Assault on College Campuses: Seeking the Appropriate Balance between Due Process and Victim Protection


Triplett, Matthew R., Duke Law Journal


ABSTRACT

Peer sexual assault is a significant problem on American college and university campuses. On April 4, 2011, the Office for Civil Rights of the Department of Education sought to address this problem by issuing a new "Dear Colleague Letter" that provided enhanced guidance on how educational institutions should adjudicate such incidents. The letter has the perverse effect of complicating matters further by blurring the already fine line between victim protection and due process for the accused, and it exposes a potential liability trap for educational institutions. This Note explains why the law surrounding victim protection and due process is difficult for institutions to apply and argues that the Department of Education should produce a model judicial policy so that institutions, victims, and accused students will have more certainty in this complicated arena. In furtherance of such a policy, this Note offers specific due-process protections for accused students that should be embraced by educational institutions and the Department of Education alike.

INTRODUCTION

Student-on-student sexual assault is a significant problem on college and university campuses, (1) as demonstrated by several highly publicized episodes at well-known institutions of higher education. (2) As colleges and universities pursue effective means of targeting this problem, many schools have themselves become targets of legal action. Both sexual-assault victims as well as alleged perpetrators have sued their schools for failing to provide sufficient investigative and judicial proceedings when responding to accusations of assault. (3) Some of these cases have resulted in significant judgments against universities. (4)

On April 4, 2011, the Office for Civil Rights (OCR) of the Department of Education (DOE) addressed the issue of campus sexual assault by issuing a new "Dear Colleague Letter" (5) that outlined the procedures that institutions should follow to remain in compliance with Title IX, (6) the federal statute that prohibits sex discrimination in education. (7) Many colleges and universities responded to the April 4, 2011 Dear Colleague Letter ("Dear Colleague Letter") by amending their procedures for adjudicating allegations of sexual assault. (8) Meanwhile, the letter itself has sparked a debate about the appropriate balance between protecting victims of assault and ensuring adequate due process for the accused in the context of campus adjudications. (9) Scholars such as Professor Peter Berkowitz of Stanford University criticized the letter as an affront to male students' due-process rights. (10) Others, however, lauded the letter for ushering in an era of clarity in the world of Title IX compliance. (11)

In the midst of this debate, this Note argues that the Dear Colleague Letter suffers from a fatally inadequate discussion of the appropriate balance between victim protection and due process. Specifically, the document has raised more questions than it has answered, leaving the interests of both victims and accused students in flux. Because institutions simultaneously face statutory duties to respond properly to victims' claims of assault and constitutional or contractual obligations to provide due process to the accused, better-defined policies--such as those advanced in this Note--are needed. Without such guidance, institutions are left with a choice. They may closely follow the OCR's guidelines on victim protection, thereby risking possible due-process claims from alleged perpetrators, or they may independently attempt to balance victim-protection and due-process interests and risk Title IX violations for inadequate victim protection. Under either approach, institutions face potential liability, (12) and both victims and alleged perpetrators may be insufficiently protected.

This Note begins by outlining the legal forces at play in peer sexual-assault cases. Part I summarizes the campus disciplinary process and discusses Title IX, due process, and the Federal Educational Rights and Privacy Act (FERPA). …

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