Among the more controversial aspects of the proposed Title IX sex adjudication regulations is that colleges, though not required to provide an appeal process, must make appeals available to both accuser and accused should they decide to offer it at all.
We propose adding section 106.45(b)(5) stating that a recipient (college) may choose to offer an appeal. If a recipient offers an appeal, it must allow both parties to appeal. In cases where there has been a finding of responsibility, although a complainant may appeal on the ground that the remedies are not designed to restore or preserve the complainant’s access to the recipient’s education program or activity, a complainant is not entitled to a particular sanction against the respondent.
This implicates the concept of “double jeopardy,” that a finding in favor of the accused at the hearing doesn’t conclude the matter, but that the accuser gets a second bite at the apple of guilt. Note the word “concept,” as the constitutional prohibition against double jeopardy doesn’t apply. It’s a limitation on criminal prosecution and this is an administrative proceeding, even if it’s quasi-criminal in nature and constructed to circumvent constitutional mandates.
But even if the technical prohibition against double jeopardy doesn’t apply, should the underlying concept guide the Department of Education’s regulations to disallow an appeal by the accuser? This hadn’t been part of the guidelines before.
Before the Obama administration, OCR had stated that “there is no requirement under Title IX that a recipient provide a victim’s right of appeal.” (University of Cincinnati, OCR Complaint No. 15-05-2041 (Apr. 13, 2006)).
Under the Clinton administration, OCR had approved a school’s limiting appeal rights to the accused because “he/she is the one who stands to be tried twice for the same allegation.” (Skidmore College, OCR Complaint No. 02-95-2136 (Feb. 12, 1996)).
Similarly, under the Bush administration, OCR had concluded that “appeal rights are not necessarily required by Title IX, whereas an accused student’s appeal rights are a standard component of University disciplinary processes in order to assure that the student is afforded due process before being removed from or otherwise disciplined by the University.” (Suffolk University Law School, OCR Complaint No. 01-05-2074 (Sept. 30, 2008).
The policy was that appeals were limited to the accused, for the reasons behind the double jeopardy clause even if it wasn’t strictly applicable. That, like so many other aspects, changed with the “Guidance” unilaterally foisted upon colleges.
If the school provides for an appeal, it must do so equally for both parties.
The proposed regs continue this notion that both parties are entitled to appeal.
After extensive stakeholder engagement on the subject of school-level appeals,
the Department believes that by offering that opportunity to both parties, recipients will be more likely to reach sound determinations, giving the parties greater confidence in the
ultimate outcome. Complainants and respondents have different interests in the outcome
of a sexual harassment complaint. Complainants “have a right, and are entitled to expect,
that they may attend [school] without fear of sexual assault or harassment,” while for
respondents a “finding of responsibility for a sexual offense can have a lasting impact on
a student’s personal life, in addition to [the student’s] educational and employment
To the extent this rationale provides reasons, it’s that providing both parties with the right to appeal will “be more likely to reach sound determinations” and provide “greater confidence in the ultimate outcome.” While these are both lofty goals, there isn’t much by way of logical argument behind them. The best that can be discerned from the rationale is that denying accusers an appeal will be viewed as stripping away a right they had under the Lhamon regime, even if it was given for no better reason than Catherine Lhamon wanted to, and would cause outrage within the accuser advocate community.
Then again, if an accused is found not guilty by a hearing tribunal, and the accuser appeals, will there be confidence upon denial of the appeal in the outcome, or will it simply validate the belief that colleges are run by the patriarchy determined to whitewash men’s sexual abuse of women?
While the point that ending a right to appeal that should never have existed would give rise to outrage, as if maintaining it would otherwise make the proposed regulations acceptable to advocates, may be true, the rationale for giving both parties the right to appeal wholly neglects the double jeopardy question. If there is a finding of not guilty at the hearing, and that generates campus outrage, what are the chances that the atmosphere on campus won’t influence a college administrator to reverse the finding, calm the unduly passionate, and burn one student to prevent an uprising by others?
Yet, the proposed regs maintain the position that both parties must be given the right to appeal if there is to be an appeal at all. After all, if the hearing panel that heard the evidence, observed the witnesses and considered it within the paradigm of their Title IX training to believe the woman, what are the chances a campus administrator would be in a better position to “reach a sound determination”?