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Publication Date

2013

Abstract

On April 4, 2011, the Department of Education's Office
of Civil Rights issued a "Dear Colleague" letter regarding
Title JX's applicability to sexual violence on college
campuses. This letter was sent to every college or
university receiving federal funding and instructed
recipients on how to meet their legal obligations. Some of
the most important changes in the letter pertained to how
schools must conduct their grievance procedures in
adjudicatingsexual assault claims. First, the 2011 letter
requires that schools use a preponderance of the evidence
standard to determine the accused's guilty or innocence.

Second, the letter strongly discourages schools from
allowing the parties personally to question or cross-
examine each other during the proceedings. Third, if a
school uses an appeals process, the letter requires this
procedure be available for both the accused and the
accuser, meaning the accused could face the same
accusation in disciplinary proceedings twice. This Note
first establishes that students facing charges in such
campus disciplinary proceedings have a right to due
process. The Note then argues that the latest OCR
guidance for Title IX compliance does not afford accused
students sufficient procedural due process protections.
Lastly, this Note suggests that, given the significant liberty
interests at stake in campus disciplinary proceedings
involving sexual assault charges, due process requires that
guilt be established by at least clear and convincing
evidence, that accused students have an opportunity to
question or cross-examine their accusers, and that
accusers should not be allowed to appeal an unfavorable
outcome.

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