Compliance and the Constitution in Conflict: Title IX, Due Process and the First Amendment

1. Compliance and the Constitution in Conflict: Title IX, Due Process and the First Amendment Professor Peter Lake Charles A. Dana Chair, Director of the Center for Excellence in Higher Education Law & Policy, Stetson Univ. College of Law 2014 Campus Safety and Violence Prevention Forum

2. Due Process Challenges • Compliance with 4/4/11 Dear Colleague Letter (DCL), et seq. (Montana and Yale Resolutions, SaVE Act) • Rectifying Regulatory Mandates with: • Supreme Court Interpretation of Title IX • Due Process • State Contract Rights Requirements • State Administrative Procedure Acts (APA) • Heading for Process Battles in the Courts

3. Challenges of Complying with Regulatory Mandates: Creating College Sexual Assault “Courts” • Impartiality  Tenure? • Lawyers • Appeals • Standard of Proof • Title IX standard in court? • A change for some IHE’s. • “New” mandate? • Enhanced Enforcement by Depts. of Ed. and Justice • Expectation of More Enforcement by Colleges • Evidentiary Issues • “Consent” • Withdrawals in Advance of Adjudication • False Accusations • “Jurisdiction” • On/off campus • Responsibilities under Title IX, but no grant of jurisdiction per se

4. The U.S. Supreme Court on Title IX Private Enforcement • Gebser v. Lago Vista Independent School Dist., 524 U.S. 274 (1998). • Davis v. Monroe County Bd. of Ed., 526 U.S. 629 (1999).

5. College “Courts” and Due Process • Will the U.S. Supreme Court finally provide college due process mandate? • Brief history and myths of college due process: • Dixon v. Alabama, 294 F. 2d 150 (5th Cir. 1961). • Goss v. Lopez, 419 U.S. 565 (1975). • Bd. of Curators of Univ. of Missouri v. Horowitz, 435 U.S. 78 (1978). • Regents of Univ. of Michigan v. Ewing, 474 U.S. 214 (1985). • Kent State and Codes • Protected interests of life, liberty, property • Liberty = Reputation • Sexual assault :: reputational injury • State Action

6. College “Courts” and Due Process (cont’d) • Mathews v. Eldridge • Substantive/Procedural Due Process • The Title IX college court model does not provide criminal due process protections: • Evidence • Jury • Confrontation • Discovery • Burden of Proof • Right to Counsel • Impartial judiciary • Investigations

7. College “Courts” and Contract Rights • Handbooks/Codes • “Substantial Fairness” • McCormick et al. v. Brown University et al. • Brown Univ. asked to supply donor records • John Doe v. Sewanee: The University of the South • Jury awarded $26,500 to student. Sewanee found negligent in handling of disciplinary hearing and investigative process. • Honor Systems • Centralized Command

8. College “Courts” and State Administrative Procedure Acts (APAs) • Some states require compliance with state APA • Potentially inconsistent mandates • Federal supremacy? • Consult counsel

9. Thank You! Join me for a further discussion: We Can Do Title IX Compliance Better Than You!