Triple Jeopardy and No Lawyers at SMU

Southern Methodist University has become the latest target of the Office for Civil Rights (OCR), signing an agreement admitting to violations of Title IX and adopting new policies. As with all such agreements, due process for accused students is the loser. But this agreement has a few unusual clauses.

While the SMU OCR complaint dealt with three issues, the sexual assault case involved two men. While the current OCR leadership has been extraordinarily aggressive in redefining Title IX into a statute that allows the federal government to micromanage university sexual assault policies, it’s done so on grounds that sexual assault constitutes gender discrimination. Whatever else can be said for how SMU did or did not handle this case, it’s hard to argue that SMU’s behavior indicated gender discrimination. Moreover, there’s little evidence in the resolution letter that SMU didn’t take the issue seriously: the SMU police investigated the allegation and arrested the alleged perpetrator, suspended the accused student, and issued a no-contact order with the accuser. OCR nonetheless objected, on two grounds: first, that SMU hadn’t done enough to address alleged harassment of the accuser by the accused student’s friends (there were no witnesses to this alleged harassment); and second, by allowing the SMU police (which had full law enforcement training, plus subpoena power) to conduct the investigation, SMU had violated the accuser’s Title IX right to a simultaneous investigation by university bureaucrats.

The key provision of the settlement is an OCR mandate that SMU make permanent its interim sexual assault/harassment policy. The policy has a few quirks: it punishes, for instance, “inadvertent offenses,” without explaining what those inadvertent offenses might be. Like all schools that have settled with OCR, SMU is now required to use the preponderance of evidence (50.01 percent) in deciding whether to brand one of its students a rapist; SMU also has committed to undertaking its own inquiry even when students report a crime to police. An accused student can now (before any hearing or investigation has taken place) be reassigned from a class or restricted from living in SMU student housing.

The process blessed by OCR places significant other limitations on the accused student—indeed, it’s hard to believe that virtually any student accused of sexual assault would be vindicated at SMU. The process begins with an investigator interviewing both the accuser and the accused. The accused student can’t cross-examine the accuser and doesn’t see the evidence compiled against him. He can bring only a member of the SMU community, not an outside attorney, to his interview. (SMU doesn’t explain the rationale for this exclusion.) The “investigation” itself is a whirlwind affair, and the investigator must finish her activity within 20 days. Since she doesn’t have subpoena power, she probably won’t have much to look at besides the interview transcripts; in the event, the investigator must produce a report within 10 days.

If either party disagrees with the investigator’s conclusion (meaning that even if the investigator concludes the accused student did nothing wrong, he’s not off the hook), the University Conduct Review Process sets in. The accused student gets four days’ notice of a hearing before a single officer. Discovery is extraordinarily limited, confined to “a brief description of the incident(s)”; “date(s) of the incident(s)”; and “the alleged violation(s) of University policy.” Once the session commences, the accused student again cannot cross-examine his accuser (or any other witness), and can only be represented by an attorney if that attorney is a family member who agrees not to act “in a lawyer capacity.” SMU doesn’t define what a “lawyer capacity” is.

Even if this conduct officer concludes that the accused student did nothing wrong, the accuser can appeal, to a five-person University Conduct Board. All members of the board must receive Title IX training as selected by the Title IX officer—this isn’t, in short, a neutral body. (SMU doesn’t make this training material public.) The accused student receives three days’ notice of the evidence to be used against him plus a list of witnesses for the other side. No cross-examination occurs in the hearing, at which witnesses do not testify under oath. The student can be branded a rapist by a 3-2 vote, with those three members only 50.01 convinced that he’s guilty.

To reiterate: this new procedure, which OCR requires SMU to continue in the future: (1) denies the accused student the right to an attorney; (2) denies the accused student the right to cross-examine his accuser; (3) allows the accused student no meaningful discovery; (4) can brand the accused student a rapist even if SMU’s own investigator and, later, own conduct review officer concludes he did nothing wrong; and (5) can reach that determination on a 3-2 vote.

The OCR settlement with SMU contains one final assault on due process. SMU must “review sexual harassment/violence complaints and reports of sexual harassment/violence filed during and since 2012-2013 to determine whether the institution investigated each complaint or report promptly and equitably and, following OCR review and approval of SMU’s proposed response, take action to address any problems identified.”[emphasis added] This goes beyond the double-jeopardy provision of the OCR settlement with SUNY, and at the least strongly implies that a student acquitted of sexual assault in the 2012-3 or 2013-4 academic years could now be tried again by SMU.

Even for an agency as indifferent to due process as OCR, this is a breathtaking mandate.


  • 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.

7 thoughts on “Triple Jeopardy and No Lawyers at SMU

  1. Thank you for covering the efforts by OCR to impose its vision and values on universities (private and public) through the strategem of coupling a threat of funding cutoffs to a predicate offense under Title IX. It seems to me that the OCR-university agreements are analogous to “corporate integrity agreements” (CIAs) between corporations and HHS (or DOJ) for alleged Medicare-Medicaid violations. I speculate that the CIAs are both enormously disruptive to the corporations that sign them (which they do only because it is the least-bad alternative), and extraordinarily influential on the entire industry: because peer organizations follow every move. The aggregate impact, scope and duration are a kind of lawmaking that Congress can only wish it had the power to achieve.

    One other thought: if I matriculate at a school which signs one of these extraordinary agreements with OCR, how am I bound? Have I waived my rights to due process, by paying my tuition check? …I don’t mean to be pedantic but between the “deal” that is struck by OCR with a cowed or complaisant institution, and my individual expectations and Constitutional rights, there is an unclear linkage. As the “unjustly accused” cases proliferate, I expect that linkage will be more thoroughly explored; and not to the credit of the schools which signed these “deals.”

  2. It’s getting close to time to start bringing heat on the mid-level ED bureaucrats who are heading up these investigations.

    Time to name and shame them.

  3. Who are the people at the Office for Civil Rights (OCR)? We need to start naming and shaming these Kafkaesque bureaucrats publicly.

  4. Any indication that SMU is conducting an investigation against a student should result in an immediate lawsuit against SMU for defamation; the student should refuse all attempts at contact by SMU that do not go through his lawyer(s).

    Minimum settlement should be:

    1) All legal fees borne by the student
    2) Refunding by SMU all tuition, fees, and room and board paid to it by the student
    3) Destruction of all records pertaining to the action, enforced by a bond equivalent to the student’s estimated lifetime earnings posted by SMU
    4) Written acknowledgement by SMU that its actions were tortious.

    In return, the student agrees to withdraw from SMU. After this has happened a few times, SMU will see the light.

  5. I am more outraged every day with each article I read on these due process violations. I had thought that due process violations were unique to my family member’s school when it quickly labeled her a rapist. Yes, Her. And now I know why the Dean sat smugly in her office while I expressed my outrage at the process, the failure to talk to witnesses, an investigation that wouldn’t hold up in any court system. A very respected journalist in our community once said that sustained outrage is an essential element to change, and these articles certainly provide the fuel for sustaining my commitment to DO SOMETHING about these injustices being proliferated all over this country.

    1. You might consider helping those at FACE (Families Advocating for Campus Equality

      Though most victims of these civil rights violations will be men, as the perpetrators of them intend, women will also become victims. When I was in college, I was fondled by female classmates, and I am male. It was not something I was asking for and it may have been embarrassing, but I would not have called it sexual assault then nor would I now. But if I were a man in college now and such a thing occurred, I would almost certainly enter a complaint, simply as an act of protecting my civil rights.

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