Yesterday, the Office for Civil Rights (OCR) made clear that all colleges, not just public institutions, must provide adequate due process to students accused of sexual misconduct. (Although OCR used the phrase “equitable” instead of “due” process, it is the message, not the label, that is important here.) While due process has been required of public institutions, the clarification with respect to private colleges came in the context of a resolution agreement with Wesley College after OCR concluded that the college violated Title IX.
OCR’s investigation was prompted by a complaint by the parent of an accused student who had been expelled from the school following a finding of sexual misconduct. OCR found that Wesley violated Title IX, and the accused student’s rights, by:
- suspending him without assessing whether he was a threat;
- not interviewing him or allowing him to respond to the complaint prior to the final hearing;
- not providing the incident report or evidence prior to the hearing, not providing him with accurate information concerning the process and his rights;
- and not letting him question witnesses at his final hearing (which occurred eight days after the initial complaint).
Notably, Wesley’s policy provided adequate due process for the accused. The school, however, strayed from these procedures in handling the case.
Since 2014, we have recommended that private colleges provide due process protections for both parties in their sexual misconduct policies, and the OCR’s position now affirms the importance of those protections for both complainants and respondents. However, even the best policies must be followed by everyone involved in the grievance process to avoid potential Title IX violations.
If you have questions concerning the rights of students accused of Title IX violations or if your policy needs to be modified to address the OCR’s position, please contact any member of our Higher Education Team