Going Beyond Legal Obligations: Be Guided by Fairness and Justice
Robert M. Hendrickson
Pennsylvania State University
When Dixon v. Alabama (1961) was decided, I was a junior in high school, and at the time, I had no idea of the revolutionary nature of this case. What I learned as I began to study legal issues in higher education was that this decision was a watershed case that brought the courts through the college gates and established a new constitutional relationship between students and colleges and universities. This new constitutional relationship resulted in the courts exploring the applicability of certain constitutional rights to college students. These rights, commonly discussed in higher education judicial circles today, included due process, privacy, equal protection under the law, gun control, and freedom of speech, press, and religion. These areas, and many others, have been the topic of discussion in APCA Developmentswhere legal issues have been explored and implications for practice were presented for student affairs practitioners.
This is my last contribution to Developments, and this fact has resulted in some reflection on how far we have come in protecting student’s rights while creating a safe, healthy, and diverse educational environment that promotes student development and growth. It has resulted in a personal retrospective of my own experience as an administrator responsible for enforcing institutional policy while protecting student’s rights, all the time trying to utilize professional and ethical standards. It is not just a question of what is legal, in many cases, but what is fundamentally fair and just. Our standard ought not to be whether we are operating within what the law requires but, rather, how do we conduct a fundamentally fair and just process where the rights of both the accused and the accuser are protected. Applying that higher standard of being fundamentally fair and just is tested directly in Title IX cases of sexual assault.
Particularly difficult are those cases that involve alcohol and acquaintance rape. These cases usually involve alcohol consumption and questions of whether the sexual involvement was consensual. These cases are complicated further by the fact that they may involve criminal activity (i.e., rape), but often we elect, as an institution, not to report a potential crime to police. Though there may be good rationale for not reporting this criminal activity, whether this is educationally and developmentally sound practice remains unclear. Are we actually enabling irresponsible behaviors because students know they will be protected by the institution and not be held responsible by the outside world for their actions? The 18-year-old adult not enrolled in college would face criminal prosecution for similar behavior. Are we being fair and just to all students by protecting a handful from criminal prosecution? An actual case may help to understand how these issues play out in sexual assault cases.
Last fall, as I was beginning to think about this final column in ACPA Developments, I saw an article in the September 6, 2011 issue of Inside Higher Education (IHE) entitled, “New Scrutiny for Sex Assault Cases”. I thought this would be the perfect topic on which to write because it addressed issues that require administrators to go beyond basic legal requirements to provide a fundamental fair and just process for all parties. Little did I know at the time how prophetic this choice was and how sexual assault would affect me professionally, as well as the University to which I have given 28 years of my life. As the reports of child abuse unfolded at Penn State, my reaction was a variety of emotions and a tendency to hide from this topic. Sexual assault involving campus constituencies, regardless of whether it’s abuse of students or children, raises similar issues. In time, however, I was able to move beyond the sorrow and anger I was feeling and realized that understanding the legal and ethical requirements in sexual assault cases will help to understand policy and practice that can be applied equally to cases of child abuse. What follows is not a discussion of the situation at Penn State, where legal process and investigations will determine guilt, dysfunction and remedies to be applied in the future. However, the resolution of sexual assault cases in recent years can provide student affairs administrators with some guidelines to a fundamentally fair and just process in resolving these cases.
In Doe v. University of the South 687 F. Supp. 744 (E.D. Tenn. 2009), after an encounter on August 30, 2008, between the plaintiff Doe (a male student) and a female student, the female student filed a complaint with the University alleging rape. The University’s Title IX sexual assault policy and procedures requires that a student be notified within five class days after a complaint has been filed. The Dean appoints an investigator who interviews students and witnesses involved and, where possible, obtains written statements. The accused and accuser are each asked to provide written accounts of the incident and each is provided with a consultant, one character witness, and a 24-hour notice of the hearing date and time. On September 17, John Doe was asked by the Dean’s office to attend a meeting with the Dean of Students on the morning of September 18. That morning, he was informed of the charges, given statements of witnesses, informed of the hearing scheduled for September 19, 2008, and told to bring a character witness to the hearing. Doe was quizzed on his written statement by the appointed investigator before the hearing. Doe did not hear the hearing investigator’s oral testimony and was allowed in the hearing only during his own and his character witness’ testimony. He was informed later that day that he was found guilty and given two options: suspension for one semester with the assault remaining on his record or suspension for two semesters with no record of the assault and the option to reapply for admission. He was informed of the right to appeal but was told the Vice Chancellor might increase the punishment and the complainant might file criminal charges. He accepted the two-semester suspension but appealed the decision. The Vice Chancellor upheld the original decision. Doe never reapplied for admission but sued in federal court.
As IHE reported, the case was tried before a jury in Federal Court and found that the institution was negligent in the application of its sexual assault policies. John Doe was awarded damages of lost tuition. Further complicating this case was the fact, revealed during the trial, that the female had medical issues requiring medications to control mood, narcolepsy, and these had been combined with consumption of alcohol at levels higher than she had experienced before. The hearing committee ignored any information about her medical condition and alcohol consumption. The statement she gave to the committee was erroneous because she claimed that she had no alcohol for four hours prior to seeing Doe. The hearing committee had acknowledged that Doe thought the sex was consensual and that the committee lacked information about alcohol consumption and her incapacitated condition. In these cases sometimes, institutions will not consider certain facts in order to protect the victim. Other institutions seem to go out of their way to protect the accused. The difficulty in a “he said – she said” case is finding that balance between both the rights of the alleged victim and the accused. Although I could not find the specific counts of negligence by the University found at trial, there are a number of process issues that appear to have been ignored as the institution seemed to have rushed to get this situation behind them. In this case, it appears not handing the case over to the authorities may have actually been detrimental to the accused student.
In April of 2011, the Assistant Secretary of Civil Rights issued a letter providing guidelines for institutions to follow in enforcing Title IX regulations involving sexual harassment and sexual violence. The statistic on sexual violence are that “1 in 5 women are victims of completed or attempted sexual assault in college” while 6.1% of males are victims of similar sexual violence (p. 2). The letter set out specific guidelines that institutions should follow in assessing their policies and procedures surrounding sexual harassment and assault. The letter describes a grievance procedure that institutions should implement to handle these cases and provides that institutions are allowed to use disciplinary procedures in place of a grievance procedure for cases of sexual violence (p.8). The letter argues that the standard to prove guilt used in Title IX grievances be “the preponderance of evidence” (i.e., it is more likely than not that sexual harassment or violence occurred) (p. 11). OCR objects to the “clear and convincing” language (i.e., it is highly probable or reasonably certain that sexual harassment or violence occurred) (p. 11). I would argue that the “preponderance” standard should be applied where sexual harassment is at issue. However, I would recommend that in cases of sexual violence that the institution’s disciplinary procedures be followed judiciously and the “clear and convincing” standard be applied as proof of guilt. Using this standard will achieve balance of a fundamentally fair and just process that protects the rights of both the victim and the accused.
Sexual assaults involve violations of laws and are considered criminal acts. I realize there is a desire to protect victims when acquaintance rape involves students on college campuses. The result is that, many times, there is a tendency to handle these cases within the institution because either the victim requests confidentiality or the institution bases its decision on the concepts of in loco parentis.As a result no criminal charges are filed. Are we enablers when we insulate students from responsibility for their actions? Many of these cases involve excessive alcohol consumption. Are we enabling excessive alcohol consumption by insulating college students from criminal prosecution for sexual assault? Is the college or university an enclave where the community is a protected environment for experimentation? Is the extension of this rationale what resulted in Penn State’s failure to report alleged sexual abuse to civil authorities? The jury is still out on that question, but perhaps we need to rethink policies were we are handling criminal activity internally instead of reporting it to appropriate authorities. This may be legal but is it fundamentally fair, just and educationally sound? Making distinctions between what is legal and what is fundamentally fair and just may be helpful in leading to educationally sound policy and practice.