The new Title IX regulations will afford students accused of sexual harassment or sexual misconduct some due process protections. Those regulations are being challenged, and even when they take effect, schools may not fully follow them. Students in Washington State who are not aware of their rights may waive them or even be pressured into waiving them.
In a recent unpublished case, the Sixth Circuit held that an accused student had waived his due process rights. Following an investigation for alleged sexual misconduct, the school’s policy allowed for two options for resolution, an administrative hearing or a board hearing. The administrative hearing was a more informal process in which an adjudicator met with each party separately. The adjudicator would then determine culpability and any punishment based on those meetings and the investigatory materials. The administrative hearing process did not provide for the parties to present evidence or cross-examine witnesses. The more formal board hearing involved an actual hearing before a three member panel, where witnesses could testify and a type of cross-examination. Both parties would be allowed to question witnesses and submit questions that they wanted to ask each other to the panel. The panel would then determine culpability and punishment, if appropriate.
In this case, both parties indicated in their signed statements that they preferred an administrative hearing. The University therefore moved forward with an administrative hearing. The hearing officer found the plaintiff was “responsible for non-consensual sexual intercourse under the university sexual misconduct policy” and ordered a two year suspension. The hearing officer also barred the plaintiff from campus during his suspension and from living in University housing after the suspension.