A Call for Title IX Reform Amid Kavanaugh Debate

October 3, 2018

On Friday, attorneys Susan Stone and Kristina Supler met with officials from the Department of Education’s Office for Civil Rights (OCR) and others to highlight the need for reform in Title IX, the federal mandate that governs the way colleges and universities respond to allegations of sexual misconduct. Stone and Supler, both partners in the Cleveland-based law firm Kohrman Jackson & Krantz, have long specialized in serving students and professors accused in Title IX matters involving campus sexual misconduct and assault.

The timing of the meeting was particularly significant, given that it occurred one day after the contentious hearing before the U.S. Senate Judiciary Committee regarding allegations of sexual assault against U.S. Supreme Court nominee Brett Kavanaugh. The meeting was also precipitated by widespread speculation about the U.S. Department of Education’s anticipated revision of its guidance about Title IX enforcement.

“The Kavanaugh hearing highlighted the unanticipated and far-reaching implications that an allegation of sexual assault or misconduct can have on a young person’s life, far into adulthood,” said Stone and Supler. “As long-time attorneys specializing in Title IX matters, our meeting with OCR was an opportunity to highlight the critical need for reform in the way due process is carried out in Title IX investigations for both the accused and the accuser.”

In particular, Stone and Supler are urging the OCR to carefully consider in its new guidance students who are especially vulnerable in campus sexual misconduct proceedings – those with disabilities and those facing criminal prosecution. Among these critical issues:

  1. Students with disabilities need active, engaged advisors in Title IX proceedings. Under current OCR guidance, student advisors have a limited role in the misconduct process. OCR must understand that students with disabilities need their advisors to take a more active role in the process. With the rising number of autistic students attending college, for example, Title IX regulations must take into account the reality that these students require accommodations in misconduct proceedings. Highlighting their prior cases, Stone and Supler shared with OCR officials the ways that students with disabilities struggle to understand the magnitude of the process and often become bystanders to their own proceedings.
  2. Sanctions for students with disabilities must account for learning differences. The revised guidelines also do not address how sanctions impact students with disabilities. Stone and Supler urged OCR to revise the Title IX regulations to account for disabilities in the sanctioning phase of sexual misconduct proceedings. Specifically, students found responsible for violating school policies may require social-skills training to better engage with peers and ensure that future policy violations do not occur. Because students with disabilities often learn differently, sanctions that are designed to be educational, not punitive, must account for different learning styles.
  3. Title IX investigations should be delayed until any criminal prosecution is concluded. The revised regulations state that, when establishing a timeline for an investigation, schools should take into account criminal investigations. However, the guidance does not expressly explain that a college should delay its process when a student who is facing a campus Title IX proceeding is also subject to a criminal prosecution. Stone and Supler recommended to OCR officials that they make clear that a school should delay its process until the criminal case is concluded. They explained how students face a “Sophie’s Choice” between participating in campus proceedings and risking that statements will be used against them in a criminal case, and not participating in a campus proceeding and inevitably getting expelled.
  4. All evidence – whether it could exonerate or implicate – must be shared with respondents. The revised OCR guidance instructs schools to create written investigative reports that identify inculpatory evidence (that which can implicate a person) and exculpatory evidence (that which can exonerate a person). However, because evidence can often be subject to interpretation in terms of whether it proves guilt or innocence, Stone and Supler recommended to OCR officials that the guidance encourage school investigators to summarize the inculpatory and exculpatory evidence and make it available for inspection so that the parties to a case can draw their own conclusions.

For further insights and perspectives related to Title IX, campus misconduct and the upcoming OCR guidance, contact Susan Stone at scs@kjk.com or 216.736.7220 or Kristina Supler at kws@kjk.com or 216.736.7217, or visit www.studentdefense.kjk.com.