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University of Pennsylvania Law School




The appropriate parameters for sexual assault disciplinary proceedings in public colleges and universities have historically been hotly contested. In recent years, the debate has focused on two competing sets of rights—the more established Title IX rights of the victim and the evolving constitutionally-based procedural due process rights of the accused. This debate over whose rights should be prioritized—those of the victim or those of the accused—is a classic civil rights enforcement dynamic. How can educational institutions effectuate the equality mandate of Title IX while not infringing on the constitutionally-based procedural due process rights of the accused? The Executive Branch, through the federal Department of Education (“DOE”), has historically been a critical player in defining Title IX obligations. However, Title IX has become increasingly politicized, with its enforcement largely dependent on who is in power in the Executive Branch. In this changing environment, where litigation from both victims and accused students is increasing, educational institutions must look beyond politics to determine how to develop disciplinary systems that fairly balance these two sets of competing rights. First, this Article distills the procedural due process case law and the actual protections it provides to accused students. It then argues that educational institutions should prioritize four key principles in order to create fair disciplinary systems: 1) The educational context must determine the scope of the procedural due process rights; 2) Sexual assault is not a sui generis disciplinary problem; 3) Educational institutions must calibrate the system to its remedies; and 4) Title IX must be factored in as a governmental interest. This Article proposes an Investigator/Board model that would satisfy these four principles and provide educational institutions with the tools to design and implement fair systems that are compliant with both Title IX and procedural due process.

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