Discussion List for campus-based and allied personnel working to end gender-based violence on campus.

Dear colleagues;

You may have noticed a recent NPR news story that mentions anticipated action by DOE in early 2011 re: "an advisory" on campus sexual assault, Title IX and OCR/DOE.  Part of the reason the DOE is preparing to act involves the fact that I've filed several cases with OCR in the past year alone (many more before that) - including cases against ivy league universities - where the allegations include truly unconscionable behavior by schools against victims.

Here are just a few of the issues being addressed in my cases:

1.  The standard of proof.  Many schools apply a "clear and convincing" evidence standard at disciplinary hearings.  This is a well-recognized violation of Title IX.  I have several cases now pending that raise this issue with OCR.  I asked the DOE to issue a global opinion to obviate the need for piecemeal litigation.

2.  The "rehearing" process.  Some schools allow accused students, once found responsible, to seek appeals and "rehearings".  This process interferes with the victims' right to a "prompt" disposition - which is a Title IX mandate - and causes all sorts of other problems that I have alleged interfere with her concomitant right of "equity" - also a Title IX mandate.  These rehearings tend to be especially unfair to the victim simply because schools assume the victim ONLY has rights as to the FIRST hearing.  Schools that embrace this idea act at their peril.  

3. Failure to disseminate "timeframes".  Lots of schools fail to publish "timeframes" such that students will know what to expect for significant stages in the process of resolving Title IX grievance procedures related to sexual assault.  This, too, is a clear violation of Title IX.

4. The "Forced Choice" issue.  Many schools delay grievance procedures if a criminal investigation/case is pending.  This is expressly forbidden under Title IX for many reasons - but especially because it prevents "promptness" in the disciplinary process.

My cases allege many other issues - such as the arbitrariness of decision-making such that a single person (usually a board chair) gets to determine what evidence is allowed - which has led to the preclusion of important evidence on behalf of the victim - and the admission of nonsensical "expert" witnesses on behalf of the accused student who assert wild-eyed theories and claims about the victim and the evidence. This trend toward the use of "hired guns" by accused students is unacceptable and likely violates Title IX as well.   

My cases address even more issues and problems, both school-specific and systemic - but I wanted to point out these dominant concerns that appear most frequently in my experience and are now under consideration by the DOE in my cases.  I'm sure other cases are pending, too.

Wendy Murphy