Dear Colleague: Due Process Is Not under Attack at Colleges and Universities, as Shown through a Comparative Analysis of College Disciplinary Committees and American Juries

By Shingleton, Mara Emory | The William and Mary Bill of Rights Journal, October 2018 | Go to article overview

Dear Colleague: Due Process Is Not under Attack at Colleges and Universities, as Shown through a Comparative Analysis of College Disciplinary Committees and American Juries


Shingleton, Mara Emory, The William and Mary Bill of Rights Journal


Introduction

It was 2004 and Laura Dunn was a freshman at the University of Madison-Wisconsin. In April of that year, Dunn was socializing with friends and had become so intoxicated that two of her male teammates offered to walk her safely to another party. Instead, they took her to a nearby apartment and, one-by-one, raped her as she fell in and out of consciousness.1 It took Dunn over a year to report the assault to university officials and police.2 University officials then took nine months "to contemplate [and] rej ect filing disciplinary charges"3 against the men "due to a lack of ' clear and convincing' evidence,"4 which was attributed "partially because Dunn reported her assault 15 months after it occurred."5

Dunn filed a complaint with the Department of Education's Office for Civil Rights (OCR) under Title IX,6 alleging a violation of her right to an education free from sex-based discrimination.7 In 2008, OCR ruled in favor of the university,8 finding that its actions were appropriate and in accordance with "established law, due-process guidelines, and victim-support standards."9

But Dunn contends that "the ways the university handled her report would have violated [those same] principles . . . had her assault occurred after April 4, 2011."10 On that date, Vice President Joe Biden Jr. announced a set of "broad new federal guidelines for how colleges should handle students' reports of assault" in a twentypage letter released by OCR.11 The Dear Colleague Letter,12 as it has come to be known, codified in detail how colleges and universities should investigate sexual misconduct promptly and fairly in order to be in compliance with the federal genderequity law, Title IX.13 While it was intended to provide both educational institutions and "members of the public with information about their rights,"14 its prominence as a "significant guidance document"15 raised skepticism over university officials' capabilities to properly and fairly adjudicate sexual violence.16

Such skeptics allege that conducting sexual misconduct hearings according to the Dear Colleague Letter guidelines results in a violation of the accused's constitutional right to due process under the Fifth and Fourteenth Amendments.17 In light of the recent explosion of critical comparison between university disciplinary hearings and criminal trials for the same or similar conduct, this Note stands in defense of the university disciplinary process by offering a comparative analysis of university disciplinary hearings and American juries when it comes to examining, deliberating, and reaching an outcome on sex-based misconduct.

This research and comparative analysis will show that universities are more efficient at safeguarding principles of fundamental fairness for all parties than jury trials are for the same kind of offense. This will be highlighted by drawing a comparison between the components of sexual misconduct disciplinary hearings and jury trials for sex-based crimes. Ultimately, this will quell critics' fears that an accused's due process rights are infringed when universities adjudicate claims of sexual misconduct, and will show that the process is, on a micro-level, more efficient and reliable for both the victim and accused than is currently the reality for both parties in criminal jury trials.

Part I of this Note discusses the evolution of due process rights in university disciplinary hearings and gives a general overview of universities' obligations to students as mandated by OCR. Part II focuses on the due process-related criticism of the Dear Colleague Letter that led to its formal recission in 2016. This Note will explore this criticism by delving into its main arguments, including the belief that college administrators are ill-equipped to adjudicate sexual misconduct. Because this Note seeks to refute this argument, Parts Ill, IV, and V compare the university disciplinary process to American juries rendering verdicts in trials for sex-based crimes. …

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