St. Joe’s to Court: Make “Dear Colleague” Letter Unassailable

There’s a new and troubling development in the Brian Harris case. Harris, as you’ll recall, was a St. Joseph’s student accused of sexual assault but denied basic due process rights throughout a judicial procedure that resulted in his expulsion. Harris is now suing St. Joe’s for violating his Title IX rights, alleging that St. Joe’s created a judicial procedure that was stacked against him from the start.

On Friday, St. Joseph’s University filed its official response. The university makes two broad arguments: first, it has no obligation to give due process in on-campus sexual assault proceedings, even though a culpable finding has significant, negative, and lasting effects on an accused students’ educational and professional opportunities; and second, even if St. Joe’s were so inclined (which it is not), the “Dear Colleague” letter means that federal law precludes meaningful due process in sexual assault inquiries.

St. Joe’s first asserts that Harris has no claim, since federal courts shouldn’t second guess academic disciplinary tribunals. For precedent, the university cites one federal case (Davis), which involved a 5th grader then attending an elementary school. This says something about how St. Joe’s views its students’ capabilities.

St. Joe’s concedes that Harris accurately described the basic procedures under which the university investigates sexual assault claims. But “the process worked” in the Harris case, since the former student got “what the University promises; no more, no less,” and the university never promised due process. Harris, just like all male students at St. Joe’s, accepted the school’s biased disciplinary procedures when he “matriculated at the University.” Needless to say, the St. Joe’s admissions page contains no mention that accused students will be denied the right to legal representation or to cross-examine their accusers, or that they can be deemed culpable by a 50.01 percent threshold, or that they can be expelled even in cases where accusers do not report incidents to relevant legal or medical authorities.

Just how tilted are the procedures that St. Joe’s defends? Even if the case investigator compared Harris to Jerry Sandusky, as the former student asserted, the (obviously biased) behavior wouldn’t have violated university policies, since St. Joe’s believes that an investigator comparing a student to a convicted pedophile doesn’t “breach[] the Handbook.” Similarly, St. Joe’s claims to have conducted a “prompt and thorough” investigation, even though highly relevant text messages between the two students weren’t introduced until after an appeal occurred. And what was the timeframe of this “thorough” investigation? The incident took place on November 17, 2012–and the hearing that recommended Harris’ dismissal occurred seventeen days later. Thoroughness, indeed.

In any event, the supposed rationale for the “Dear Colleague” letter would seem to contradict St. Joe’s argument that a college’s procedures dealing with sexual assault complaints can’t violate federal law. After all, in 2011, the OCR–for the first time–held that too much due process for accused students violated the gender equity principles of Title IX. If true, it would seem that at some point too “little” due process for accused students also would violate the gender equity principles of Title IX.

But St. Joe’s firmly rejects this viewpoint. Instead, in its filing the university articulates an even more extreme version of the “Dear Colleague” letter than that offered by the OCR itself. Indeed, St. Joe’s strongly implies that students accused of sexual assault could never have a Title IX claim, no matter how unfair the procedures used by the university to convict them.

The filing’s key passage on this point holds that “in light of the Dear Colleague letter, the University’s implementation of a preponderance of evidence standard and its policy limiting an accused’s right to cross-examine his or her accuser simply cannot form the basis for a Title IX claim. These procedures are not only not violative of the law, they are mandated by it.”

This is an extraordinary claim, in several ways. First: while the “Dear Colleague” letter “strongly” encourages colleges to deny accused students the right to cross-examine their accuser, the document doesn’t require the practice. So St. Joe’s assertion that its own cross-examination denial policy is “mandated” by federal law is plainly untrue.

Second: St. Joe’s claim that the “Dear Colleague” letter deserves deference from courts appears to be a misreading of relevant Supreme Court precedent. The Competitive Enterprise Institute’s Hans Bader (who formerly worked as an attorney at the OCR) discussed the issue at length in the Washington Examiner. Bader informed me that “although private colleges are not directly bound by the due process clause, when the government forces a private institution to do something that would violate due process if done by a government institution, that does violate the due process clause, as the Ninth Circuit Court of Appeals ruled in Merritt v. Mackey, 827 F.2d 1368 (9th Cir.1987). Thus, OCR’s restriction on cross-examination implicates due process even when it applies to private colleges like Saint Joseph’s University. And so the court should follow the canon of constitutional doubts by not interpreting Title IX as suggested by OCR in the Dear Colleague letter. Interpreting Title IX as precluding students like Harris from cross-examining their accusers could violate the Constitution itself, by converting private action into governmental actions subject to the Constitution under the state-action doctrine.”

Finally: even if a judge bought St. Joe’s argument that it should show “substantial deference” to the OCR, deference doesn’t mean rubber-stamping. And an agency discovering 39 years after the fact that a gender equality law actually requires schools to minimize due process protections for students accused of sexual assault should not constitute a permissible interpretation of the statute.

Will a federal judge do St. Joe’s bidding and codify the “Dear Colleague” letter?


  • KC Johnson

    KC Johnson is a history professor at Brooklyn College and the City University of New York Graduate Center. He is the author, along with Stuart Taylor, of The Campus Rape Frenzy: The Attack on Due Process at America's Universities.

2 thoughts on “St. Joe’s to Court: Make “Dear Colleague” Letter Unassailable

  1. So what is a male college student to do? How can a student, when considering where to enroll, best learn at which institutions he’s at risk of being falsely accused and “convicted” by the University, or, conversely, at what institutions there is a fair due process? Or is Helen Smith correct, that there’s a War on Men and the only way a male student can avoid that risk is by not enrolling anywhere?

  2. KC,
    While you may not like St. Joe’s legal arguments, they are well supported by 50 years of legal decisions regarding the obligations that private colleges own their students. Don’t believe me, consider this quote from FIRE’s Guide to Due Process, “Private colleges or universities are free, by contrast, within very wide guidelines and boundaries established by state laws, to set their own rules and to formulate their own disciplinary procedures. A student is free to take or not to take such procedures into account when deciding to attend such an institution. Once private institutions establish and publish disciplinary rules, however, they are then obliged, by principles of contract law, to follow them in good faith, even if not always to the strict letter.”
    FIRE also takes a more limited view on cross-examination at public universities than Bader did noting, “Due process, as indicated by Donohue, does not generally require face-to-face confrontation in campus disciplinary proceedings. However, if a compelling case could be made that such actual confrontation is necessary to a fair judgment (for example, when someone’s defense is based on mistaken identity), it might well be required by due process. As in the case of so many other protections, the extent of the “process that is due” depends largely upon the facts and circumstances of the situation. If you want to argue for more process, you need to demonstrate why such procedural rights are made necessary by the facts and circumstances of your particular case.”
    I also think that you misrepresent the strength of Bader’s conclusion about cross-examination as the case law is not settled on the question and as he notes the DCL doesn’t “prohibit” cross-examination, but discourages direct cross-examination (to the extent that the DCL can be said to prohibit anything).

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