Fara Cohen, Griesing Law

Urban Meyer. Larry Nassar. Chris Bustamante. C.L. Max Nikias. Art Briles. The list goes on. Some of these names might sound familiar, some maybe do not. Due to the popularity and appeal of college sports, sports-related scandals are usually the ones making the headlines. For example, in May 2016, Art Briles was dismissed as head football coach of Baylor University for mishandling sexual assault allegations against his student-athletes. On Jan. 24, Larry Nassar was convicted and sentenced to 40 to 175 years in prison for molesting more than 150 women and girls, many of whom had spoken out about the abuse, yet were ignored by major organizations such as USA Gymnastics, Michigan State University and the US Olympic Committee. In the latest scandal, Ohio State University's head football coach, Urban Meyer, was suspended for three games after it came out that he knew of 2009 and 2015 incidents involving former wide receiver coach Zach Smith's alleged domestic abuse of his then wife, and other indiscretions, and did nothing.

The sheer number of these headlines in recent years is daunting, and this problem is by no means limited to athletics. In fact, a 2015 survey commissioned by the Association of American Universities found that approximately a quarter of undergraduate women at a large group of leading universities said they had been sexually assaulted by force or when they were incapacitated during their four years of college. In April, a former George Washington University student sued the university in the U.S. District Court for the District of Columbia claiming they mishandled her sexual assault allegations by delaying the investigation and failing to communicate with students who file reports. In May, C.L. Max Nikias, the president of the University of Southern California, stepped down after the university failed to address years of allegations of sexual misconduct by the school's former doctor. In July, a third woman sued Stockton University claiming that the school knew or should have known that a particular fraternity presented a danger to the students, yet did nothing to protect the students, and that the officials hired to help victims of sexual assault were ill-prepared and ineffective in their duties.

Legal Background

In October 2017, we wrote an article discussing what was next for Title IX after Betsy DeVos announced that the Department of Education Office of Civil Rights planned to review Title IX guidance around sexual misconduct with an eye toward rescinding it. In August of this year, the New York Times published a leaked draft version of amended Title IX guidelines that apparently narrows the definition of sexual harassment, only hold colleges and universities accountable for investigating formal complaints and incidents which occur on campus, and allow more protections for the accused overall. Under the new guidelines, colleges and universities would be held responsible for fewer incidents and they would be legally exempt from investigating assaults not reported to the designated school official tasked with handling these cases.  Victims may also need to prove their case by a “clear and convincing” standard of evidence, rather than by the “preponderance of the evidence” standard as previously required under the Obama administration.

Seemingly in line with the potential new guidelines, in September of this year, the U.S. Court of Appeals for the Sixth Circuit held that a former student's claims that the University of Michigan violated his due process rights after he was accused of sexual assault were allowed to move forward. Specifically, the student's lawsuit alleged that the university's policies are inadequate because, in a situation where there are no witnesses and credibility is at issue, due process requires cross-examination. The lawsuit also relied on a 2017 Sixth Circuit decision which stated that “the Due Process Clause guarantees fundamental fairness to state university students facing long-term exclusion from the educational process … failure to provide any form of confrontation of the accuser made the proceeding against John Doe fundamentally unfair.”

In Pennsylvania, fundamental fairness in the context of a university disciplinary proceeding requires that the accused receive notice of the charges and the opportunity for a hearing. The hearing should provide an opportunity for both sides to be heard. However, cross-examination of witnesses akin to a full-dress judicial hearing is not required. The Third Circuit has held that there is no particular format university disciplinary proceedings must follow; however, they must provide sufficient due process protections. So how should institutions of higher education proceed given that these scandals are becoming more newsworthy, yet Title IX is in flux and trending away from accountability for schools and protections for the accusers?

What to Consider

Despite the fact that the Title IX guidelines may eventually become less stringent, and regardless of the duties imposed by colleges and universities under the law, schools should consider their social and moral obligations to protect students in pursuit of an education.

Definitions of the different types of acts that can constitute harassment, abuse, or violence vary by jurisdiction so it is important for a school to determine how the laws are applied in its home state. In 2012, well before the #MeToo movement, the American Association of University Professors released a statement with suggested policies and procedures regarding campus sexual assault. The statement suggested that closer coordination with trained law-enforcement officials can increase the likelihood that incidents will be given more credence and be more fully investigated. The statement also emphasized the importance that once prevention and reporting policies and procedures are in place, they be made widely available throughout campus and even off campus. The policy should encourage victims to report the incident to both campus authorities and off-campus police, and should generally indicate what each procedure entails and what purpose the reporting will serve.

Colleges and universities should encourage reporting by students and faculty and make it as easy as possible for individuals to do so. They should clearly and overtly provide the name and contact information of the person to report to and make it clear that any reports will be confidential and anonymous. An office or position should be established that is solely for the purpose of overseeing and coordinating responses to and investigations of sexual assault allegations. Institutional memory and record-keeping, especially in terms of who knew what, and when, is imperative for accountability purposes. Finally, prevention programs for athletes, coaches, students, and faculty should be implemented. These programs should be required for all entering and transfer students. As the American Association of University Professors recommended, the programming should focus on healthy relationships, what constitutes consent, strategies for bystander intervention, and special programs for fraternities and male athletes encouraging them to work together to help prevent these crimes.

Most importantly, if current events have taught us anything, schools must take these complaints and allegations seriously and keep them confidential in order to encourage reporting and deter predatory behavior both on and off campus. Schools should act quickly when made aware of these allegations as delays are painful for all parties involved. Hold those who enable this sort of behavior accountable, in addition to those who commit it. Repercussions can include probation, suspension and expulsion of the accused depending on the severity of the conduct. As long as people—especially high-powered people—are covering up, and effectively allowing this sort of behavior, the problem will not go away.

Conclusion

The ability of students to learn is undoubtedly hindered when they do not feel safe on campus, whether it be in their classrooms, their dorm rooms, or during extracurricular activities. It is time for colleges and universities to take action and work toward making campus a safer place for students. Assault on college campuses is becoming more and more prevalent. These sorts of scandals are not only detrimental to the students involved, but also potentially to the school (and its reputation). By implementing the guidelines described above, schools can take steps toward preventing these occurrences and making college safer for everyone.

Fara A. Cohen is an associate in Griesing Law's commercial litigation practice group, where she represents clients in high-stakes litigation, employment law and other business-related disputes. Cohen can be contacted at 215-501-7849 or [email protected].