Professor Peter Lake Charles A. Dana Chair, Director of the Center for Excellence in Higher Education Law & Policy, Stetson Univ. College of Law 2014 Campus Safety and Violence Prevention Forum

Compliance with 4/4/11 Dear Colleague Letter (DCL), et seq. (Montana and Yale Resolutions, SaVE Act) Rectifying Regulatory Mandates with: Supreme Court Interpretation of Title IX Due Process State Contract Rights Requirements State Administrative Procedure Acts (APA) Heading for Process Battles in the Courts 2

Impartiality  Tenure? Lawyers Appeals Standard of Proof Title IX standard in court? A change for some IHE’s. “New” mandate? Enhanced Enforcement by Depts. of Ed. and Justice Expectation of More Enforcement by Colleges Evidentiary Issues “Consent” Withdrawals in Advance of Adjudication False Accusations “Jurisdiction” – On/off campus – Responsibilities under Title IX, but no grant of jurisdiction per se 3

Gebser v. Lago Vista Independent School Dist., 524 U.S. 274 (1998). Davis v. Monroe County Bd. of Ed., 526 U.S. 629 (1999). 4

Will the U.S. Supreme Court finally provide college due process mandate? Brief history and myths of college due process: Dixon v. Alabama, 294 F. 2d 150 (5th Cir. 1961). Goss v. Lopez, 419 U.S. 565 (1975). Bd. of Curators of Univ. of Missouri v. Horowitz, 435 U.S. 78 (1978). Regents of Univ. of Michigan v. Ewing, 474 U.S. 214 (1985). Kent State and Codes Protected interests of life, liberty, property Liberty = Reputation Sexual assault :: reputational injury State Action 5

Mathews v. Eldridge Substantive/Procedural Due Process The Title IX college court model does not provide criminal due process protections: Evidence Jury Confrontation Discovery Burden of Proof Right to Counsel Impartial judiciary Investigations 6

Handbooks/Codes “Substantial Fairness” McCormick et al. v. Brown University et al. Brown Univ. asked to supply donor records John Doe v. Sewanee: The University of the South Jury awarded $26,500 to student. Sewanee found negligent in handling of disciplinary hearing and investigative process. Honor Systems Centralized Command 7

Some states require compliance with state APA Potentially inconsistent mandates Federal supremacy? Consult counsel 8

Join me for a further discussion: We Can Do Title IX Compliance Better Than You!