- Organizations only have as many due process rights/protections as we provide to them in our codes of conduct. Our relationships with individual students are Constitutional (at least at public institutions), but our relationships with organizations are largely contractual. We must have a fair process for addressing student organization behavior that is neither arbitrary nor capricious. Other than that, organizations have no “rights” that are commonly associated with the traditional student conduct process. We can address organizational conduct in whatever manner we choose, so long as that manner is inherently fair and applied evenly.
- The civil rights investigative/adjudication model provides us with the most appropriate framework for addressing not only Title IX cases, but also any other types of cases that would constitute a victim-based violation (hazing, assault, exploitation, etc.). The civil rights model provides for an independent investigation, followed by the determination of a finding based on the facts outlined in the investigation. It is appropriate for victim-based crimes because it less adversarial, provides necessary protections to victims, reduces the likelihood of retaliation or re-victimization, and eliminates redundant questioning wherein a victim is required to tell his/her story multiple times to multiple parties.
- The key ingredient to a successful civil rights investigation/process is the elimination of bias. OCR and other legal bodies have been clear on this matter. Investigators should be unbiased. They should have no stake in the eventual outcome of the case, and they should not be involved in the adjudication of the case (outside of answering questions about their investigation). In a hybrid model where a traditional hearing still takes place, panelists are expected to be unbiased. They should have no relationship with any of the involved parties that would call their independence or subjectivity into question. Many institutions of higher education have spent the last few years designing systems that build clear walls between the investigative and adjudicative roles in Title IX cases. This has been done to eliminate bias from the process inasmuch as possible.
Civil Rights Process
Hazing victims required to testify in front of their organizational leaders, as well as students from other organizations
Hazing victims only required to share their story with an independent investigator, and are not required to testify in an open hearing
Hazing victims required to tell their story to multiple parties and to endure harsh cross examination
Hazing victims only required to tell their story once to an unbiased investigator
Modestly trained student panelists with little investigatory experience
Adequately trained investigator with experience investigating cases and determining fact patterns
Time intensive (preliminary investigation, scheduling hearing, training panelists, actual hearing, layers of appeal)
Less time intensive (Investigation, written report, finding, appeal)
Subject to political influence, bias, administrative vetoes
Less subject to outside political influence, bias, or administrative overreach
- Campuses should transition to a model where all victim-based violations are adjudicated under a single civil rights investigative model. This will make everyone's lives easier, and provide a better process for victims while ensuring due process protections for alleged perpetrators.
- Investigators should receive specialized training related to not only Title IX cases, but also other victim-based violations, especially hazing.
- Campuses should partner with and embrace fraternity (and sorority) peer accountability boards to adjudicate victimless violations (i.e. alcohol/drugs, university policies related to facility upkeep, university/council risk management policies, etc.) as well as violations of their own rules (i.e. recruitment policies).