The Threat of Expulsion as Unacceptable Coercion: Title Ix, Due Process, and Coerced Confessions

By McGowan, Casey | Emory Law Journal, January 1, 2017 | Go to article overview

The Threat of Expulsion as Unacceptable Coercion: Title Ix, Due Process, and Coerced Confessions


McGowan, Casey, Emory Law Journal


INTRODUCTION. ...........1177

I. THE COLLEGE DISCIPLINARY PROCEEDING........ 1180

A. Title IX and Recent Guidance Documents............ 1180

1. Dear Colleague Letter........... 1181

2. Questions and Answers on Title IX and Sexual Violence ............... 1182

3. The Not Alone Report ........ 1182

B. Title IX Requirements for College and University Sexual Violence Proceedings .............. 1183

C. Three Common Investigatory Models.......... 1185

1. The Traditional Model........... 1185

2. The Single Investigator Model ............ 1186

3. The Hybrid Model ........ 1186

II. LACK OF SAFEGUARDS IN COLLEGE DISCIPLINARY PROCEEDINGS AND EFFORTS TO PROTECT DUE PROCESS...........1187

A. Lack of Safeguards ............. 1187

1. The Preponderance of the Evidence Standard. ...............1189

2. Cross-Examination .......... 1190

3. Appeal.......... 1191

B. Policymakers' Response to Tougher Sexual Violence Policies ........... 1191

1. Affirmative Consent.......... 1191

2. Mandatory Sentencing................ 1192

3. Mandatory Transcript Reporting ......... 1192

4. National Response ............ 1192

III. COERCED CONFESSION DOCTRINE...........1193

A, History. .........1194 B.

B. Colorado v. Connelly: The Predicate Finding of Law Enforcement Coercion. .........1195

C. A Critique of Connelly............ 1198

IV. STATEMENTS OF THE ACCUSED AS COERCED CONFESSIONS.........1200

A. The Effects of Connelly in State Court ............ 1200

B. Issue of Workplace Threat of Termination as Analogous to College Officials' Threat of Expulsion ......... 1203

C. Implications..... . 1205

CONCLUSION.......1206

Introduction

Designing a sufficiently fair and appropriate structure for college and university1 sexual misconduct proceedings has long been a unique challenge for legal scholars and college officials seeking to ensure that both the complainant and the accused are treated fairly and impartially.2 The prevalence of sexual assault on college campuses has only heightened the need for colleges to ensure that their procedures are adequate and efficient.3

Recently, Title IX has emerged as a salient tool for addressing sexual violence on campus.4 Title IX is a federal law that provides, "[n]o person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance."5 Although Title IX had not previously applied to campus policies on sexual violence, three new documents ushered in sweeping changes: the U.S. Department of Education's Dear Colleague Letter (Dear Colleague Letter), the Department of Education's Office for Civil Rights' Questions and Answers on Title IX and Sexual Violence (Questions and Answers), and the White House Task Force to Protect Students from Sexual Assault's Not Alone report.6 Many colleges and universities did not comply with these requirements, causing the Department of Education (DOE) to investigate over a hundred of them.7 Schools rushed to transform their policies and procedures on sexual violence out of fear of losing federal funding.8

This Comment focuses on the collateral consequences of college disciplinary proceedings, specifically the effect of these proceedings on the accused student's due process rights in a concurrent or subsequent criminal proceeding. In the aftermath of the Title IX policy changes and the resulting transformation in colleges' sexual violence procedures-all of which sought to provide more services and protections for identified victims of sexual violence9-little attention has been paid to the effects of these policy changes on the constitutional rights of accused students. Individual colleges and universities have offered only minimal safeguards to accused students as their policies have reformed. …

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