September 28, 2021

Volume XI, Number 271

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September 27, 2021

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Protecting Students Accused of Violating Title IX

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.

© Steptoe & Johnson PLLC. All Rights Reserved.National Law Review, Volume VI, Number 287
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About this Author

Jim Newberry, Government Relations, Attorney, Steptoe Johnson Law Firm
Member

Jim Newberry focuses his practice in the areas of higher education, government relations, and regulatory matters.  He recently served as Mayor of Lexington and has extensive leadership experience in the equine industry, legal service industry, state government and higher education.  Mr. Newberry is leader of the firm's Higher Education Team and serves as the Managing Member of the firm's Louisville, Kentucky office.

(859) 219-8226
Allison B. Williams, Employment Attorney, Steptoe Johnson Law Firm
Member

Allison Williams focuses her practice in the area of labor and employment law, litigation, and higher education law.  Ms. Williams' practice includes cases pending in state and federal courts, as well as actions pending before the West Virginia Public Employees Grievance Board, the West Virginia Human Rights Commission, and the Equal Employment Opportunity Commission. 

(304) 933-8144
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