Sexual Assault as a Civil Rights Violation Under Title IX

Article here. If you get a paywall, Google the text of the first paragraph and click the link that takes you to The Legal Intelligencer site. Excerpt:

'There is no dispute that the standard of beyond a reasonable doubt is essential in criminal cases where one's liberty is at stake. The clear and convincing standard is rarely used in civil proceedings, and only when significant liberty interests are at stake, such as termination of parental rights, deportation, and commitment to a mental institution. The preponderance standard is appropriate for civil rights actions, civil actions, and school disciplinary proceedings that result, rarely and at most, with school expulsion.

Civil remedies are commonly available to victims of crime. Is the editorial board suggesting that civil remedies not be available to any victims of crime or is it limiting this objection to victims of sex crimes, thus eliminating a remedy for sexual assault victims (who are mostly women) while providing an unparalleled shield of protection for the accused student? Is it also suggesting that campus disciplinary proceedings should not be used to address student conduct that also might be criminal in nature (e.g., other assaults, arson, robbery, vandalism) or are they just singling out sexual assault?

As to cross-examination and legal representation, Title IX procedures are more than consistent with court interpretations of the process due an accused student under constitutional law (applicable to public schools) and contract law (applicable to public and private schools). Courts have made clear that due process does not require a full-fledged court-like proceeding that imports the rights accorded defendants in criminal proceedings. Rather, due process in an academic setting requires a fair proceeding in which the accused student is provided notice of the charges, explanation of the evidence, and an opportunity to respond.

Consistent with the OCR's guidance discouraging schools from allowing parties to personally question or cross-examine each other, courts have found due process satisfied where parties engage in indirect cross-examination accomplished by having the hearing officer or panel direct the parties' questions to the other party.

Furthermore, neither courts nor the OCR require active representation by lawyers in disciplinary proceedings. The OCR, however, requires schools to make representation equally available to both parties if school policy allows lawyers to participate in the proceedings. To the extent courts have recognized a potential need for legal representation in school proceedings, it is limited to an advisory role and only when the accused student faces criminal charges as well. Recent amendments to the Clery Act, another federal law that applies to campus sexual misconduct proceedings, make clear that schools must provide both parties with the opportunity to be accompanied to disciplinary proceedings by an adviser of their choice, which includes attorneys.'