What makes the case so unusual, compared to others that have come before the courts and are public, is the sheer number of important procedural protections denied to the accused. In most cases, courts have found one or two things wrong, for example, inadequate access to witnesses or a failure of a school to adhere to the letter of its own written procedures.
In this case, the OCR found virtually everything wrong and, therefore, a violation of Title IX’s protections against discrimination.
The case involved a student expelled in April 2015, just before he would have graduated, after being accused of helping to set up and watch the live streaming of a friend engaged in sex with a female student. The sex was consensual; the live streaming was not.
So “inequitable” was the college’s treatment of the accused male student that the OCR, better known for its aggressiveness in protecting the rights of accusers, has forced the college into a settlement involving wholesale revisions of its adjudication process to make it fairer to those accused of sexual misconduct.
What also makes the case unusual is that it is believed to be a first for the government.
In summary, the student didn’t fully know precisely what he was accused of, the basis for the accusation or what recourse might be available to back up his claim that he was not responsible. Indeed, he was summoned to what he thought was a preliminary “educational” session, something informal, without knowing that it was a full-blown hearing that would determine his fate, a hearing for which he was completely unprepared.
The case stemmed, in brief, from a March 2015 report by two female students that a fraternity member had “live streamed himself engaged in a sex act,” consensually, with another female student “without her knowledge” and that three other male students had watched it and helped him set it up.
The OCR complaint issued Wednesday involved only one of the students, the one who brought the complaint to the government, who was accused of being “involved in the planning and execution of the live streaming.” But the report leveled similar criticisms about all the students disciplined.
The OCR found that the student was expelled in April, even though he:
- Was “not given an opportunity to share” his version of events. Indeed, “he was not interviewed during the investigation of the complaint,” the OCR said;
- Was “not provided with the opportunity to challenge evidence” used against him;
- “Did not receive a copy of, or information contained in, the incident report prior” to a hearing on his case;
- Was “not provided an adequate opportunity” to defend himself at the hearing or “a full opportunity to provide witnesses and other evidence;”
- Was given almost no time to mount a defense;
- And was misinformed and misled, to his detriment, about the adjudication process he confronted and the protections available to him.
Moreover, said the OCR, which is charged with enforcement of the Title IX anti-discrimination provisions of the education amendments of 1972, the officials handling the case failed to maintain, and, in fact, destroyed records of the student’s case. That left both the OCR and the courts without crucial information necessary to review the case.
The school proceeded against the student, who is unnamed in the report, despite the fact that the woman involved said she thought he was not involved in the incident which produced the charges against him.
Finally, the OCR found that this was not the only deeply flawed case handled by the school but rather one of several that “may have compromised the equity” of sexual misconduct investigations.
Wesley College is a small regional school in Dover affiliated with the United Methodist Church. Founded in 1873, it enrolls about 1600 students on a campus of about 50 acres.
The school settled with the government “voluntarily,” the OCR said, in an agreement that “does not constitute an admission” of wrongdoing.
In a written statement obtained by the Chronicle of Higher Education, Robert E. Clark II, Wesley’s president, and Wanda Anderson, dean of students, said the school “appreciates the insights and recommendations” of OCR and “will incorporate them into our ongoing efforts” to provide an educational environment “second to none.”
The OCR report and the settlement are lengthy and detailed and can be read here and here. The Department of Education’s news release is here.
What happened, in brief, was this.
After hearing about the live streaming, which occurred over the weekend of March 20-22, 2015, the two women told a professor about it. She informed the Title IX administrator, as did the two women separately, formally filing a report.
On April 1, the female student was interviewed and confirmed what happened, saying she had found out about it from another student. She said the accused student in this case was not involved in it, however, but the administrator told her the school would proceed against him anyway.
On that same day, all the male students were called to the administrator’s office and told they were being charged with violations of the college’s code of conduct, including its prohibitions on sexual misconduct. Later in the day, they were temporarily suspended and told to stay away from the campus and their classes, as well as the woman.
According to the OCR, they were given no counseling on how to proceed, or on their options, but rather sent a link to a handbook outlining procedures.
The student in this particular case read in the handbook that the first step would be an “educational conference” or “informal hearing.” So he did little preparation.
But the “educational conference” turned out to be a full-blown “Judicial Board Hearing.” Not knowing this, the student brought nothing except a letter of support from two of his professors, when, in fact, he was entitled to much more than that, including documentary evidence and written findings from the investigator.
The other three students got similar treatment in separate proceedings, with none of them being informed of what the others had said.
On April 8, just a week after they first heard of the accusations, the judicial board found all of them responsible and notified them that they were being expelled.
They tried to appeal the decision but the appeal was denied.
Not only did the college not comply with its own procedures, said the OCR, it “acted in direct contradiction of its procedures and as a result the resolution of the complaint was not equitable.”
Every misstep created another misstep. Said the OCR:
The College’s failure to interview the accused Student impacted the College’s investigation and resolution of the Student’s case. Without any information regarding the accused Student’s responses to the allegations, the College was limited in its ability to obtain all potential relevant evidence, which, in turn, made the decisions it undertook potentially based on insufficient information.
Likewise, the College’s failure to share information with the accused student, as well as the College’s provision of misinformation to the accused Student, limited his ability to fully participate in the process.
Read more on this subject: