Sexual assault survivors deserve Title IX protections

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Sexual assault survivors deserve Title IX protections

As an attorney involved in campus sexual assault hearings across the state, I feel compelled to write in response to your editorial last week on Title IX.

Title IX is separate from any criminal proceeding. Title IX staff must investigate claims without the power to compel witness participation or subpoena documents. Guidance documents such as the Dear Colleague Letter of 2011 provide instruction on how hearings are to be conducted fairly.

You wrote that Title IX hearings at college campuses “don’t guarantee accused students the right to introduce evidence, question their accuser, [or] call witnesses…” Page 11 of the Dear Colleague Letter states that “Throughout a school’s Title IX investigation, including at any hearing, the parties must have an equal opportunity to present relevant witnesses and other evidence.”

The cross-examination of witnesses and parties takes up the bulk of time of Title IX hearing. Cross-examination of the parties by opposing counsel is common. Whether parties are represented by attorneys or not, hearing officers themselves also ask questions of both parties. At some institutions, parties submit cross-examination questions to the hearing officer or panel who then ask the question themselves. Witnesses are questioned by the parties, their attorneys and the hearing officer.

Your claim that accused students are not guaranteed the right to an attorney may be technically true but is misleading. The Dear Colleague Letter clearly anticipates attorney participation, only requiring that if a school allows one party to have an attorney, it must allow both parties to have an attorney. North Carolina state law requires constituent schools to allow such attorney representation. Private universities can bar attorneys from student disciplinary proceedings (they have more freedom in general to conduct their affairs as they wish, in terms of religious affiliation, admission priorities, etc); most private colleges allow them in. Those that don’t are not violating Title IX in the strict sense, but also aren’t following any direction in Title IX guidance to not allow attorneys.

Your editorial continued: “Kangaroo courts are ill-suited to serve victims of sexual violence… Colleges should refer serious crimes to police and prosecutors, who have the power to put violators behind bars for decades.”

It is not for editorial boards to say what best suits survivors of sexual violence. Survivors of sexual violence are the experts on what suits them and have voiced their support — and concerns — with Title IX. Many survivors would agree that expulsion is not enough, but they would also tell you that the criminal legal system is often not an option. Guilty verdicts are exceedingly rare in cases without third-party witnesses, occur between acquaintances, are perpetrated with the assistance of alcohol or do not leave bruises. To say “leave it to the police” is no justice at all to the men, women and trans folk who are assaulted on college campuses each year.

Joseph Polich
The writer is staff attorney for the North Carolina Coalition Against Sexual Assault.