Worth Noting on Nine

We have noted in various posts that judges in external courts expect due process in Title IX cases at universities. And the more severe the penalty, the more they are likely to expect it. In the past, this expectation has been particularly focused on public universities since, as government entities, they are especially tied to constitutional guarantees. Now there is a court ruling in a Title IX case applying the same expectation to private institutions, as the article from Inside Higher Ed below describes.

Of course, UC is a public institution. But the case illustrates judicial expectations. If university processes don't seem like the kinds of procedures to which judges are accustomed, they are likely to find fault with those processes.

Constitutional Due Process in Title IX Cases at Private Institutions?

In a ruling that could have national implications for campus sexual assault proceedings, a federal judge has suggested that a private institution in an alleged rape case may not have followed due process standards -- a constitutional concept that generally applies only to public universities.

This is a significant development, commentators and legal observers say. This is the first time a judge, in a case involving a private college, directly linked due process to Title IX of the Education Amendments of 1972, the federal law that bars sex discrimination, including sexual violence, at educational institutions. (Students have also sued when they feel a private institution has violated its own sexual assault policies.)

The actual text of Title IX, which is only a sentence, makes no mention of due process.

"If applied more broadly, this would represent a fundamental shift in the safeguards that private schools owe to accused students to more closely align with those required of public schools," said S. Daniel Carter, president of Safety Advisors for Educational Campuses, which consults with colleges and universities on Title IX...

Full story at https://www.insidehighered.com/news/2019/06/25/rhodes-college-ruling-opens-door-due-process-private-universities

One thing that judges are not used to in their world of due process is having investigation, prosecution, and judge all wrapped up in the same entity. It might be worth considering a separation.