Yet Another Attack on Due Process by Title IX

“It’s Title IX, not Miranda,” Susan Riseling, former chief of police at the University of Wisconsin-Madison told a conference of academic administrators in 2015. “Use what you can.” Riseling was describing a case in which a Wisconsin student had been subjected to both a criminal and a Title IX complaint. The police originally didn’t have enough to charge the student—until they subpoenaed his Title IX hearing. (Students often feel pressured to speak in Title IX hearings, since many schools don’t make clear that silence can’t be held against an accused student.) Riseling’s cavalier attitude toward civil liberties seems to have caused her scant problems in Madison.

A recent case at UMass provided the latest example of the Riseling Rules. The incident involved a former UMass football player named Patrick Amara—who seemed, from all accounts, to have had a very tough life. The accuser, who was a UMass student at the time, testified that Amara raped her at a 2016 birthday party. Amara claimed the encounter was consensual. As often occurs in such cases, Amara didn’t testify at the trial; his lawyer argued that the state hadn’t satisfied its burden of proof.

But jurors heard from Amara nonetheless—because the prosecutor subpoenaed the records of Amara’s Title IX proceeding at UMass. A local reporter noted that not only was material from the Title IX proceedings used (where Amara was not represented by a lawyer) but “a recording of his testimony at a UMass school hearing was played.”  Nevertheless, jurors found Amara guilty, and the judge sentenced Amara to five years in prison.

[Major Victory for Montague in Yale Lawsuit]

Perhaps Amara would have been convicted even without the UMass Title IX proceeding providing an assist to the state’s case. But for Amara to be convicted on testimony without the advice of counsel – and without counsel cross-examining the accuser and any other witnesses who testified against him – chips away at his civil liberties. Perhaps—as sometimes occurs—he simply should have accepted expulsion from UMass rather than appear before the Title IX tribunal, knowing that he faced simultaneous criminal charges.

Amara’s fate provides a reminder of the often-impossible bind in which accused students can find themselves when facing Title IX tribunals. The issue recently was raised in a lawsuit against Miami University, in Ohio—where an accused student, like Amara, was facing both a Title IX tribunal and his accuser having gone to the police to press charges. Unlike Amara, he appeared to have at least some evidence of innocence.

On advice of counsel, the student declined to give a statement to the local police. He also temporarily withdrew from the university—so there was no possibility of his encountering his accuser on campus. Yet Miami insisted on going forth with his Title IX hearing, even though the accused student asked it not to do so since he couldn’t give a statement, on advice of counsel, until the criminal case had ended.

In an Orwellian response, the university’s Title IX investigator wrote, “The Title IX investigation process is prompt, fair and impartial for both the complainant and the accused; . . . I [cannot] reasonably delay the delivery of an investigation report pending a criminal case’s uncertain timeline or outcome.” [emphasis added]) With Miami moving to a hearing, the student requested either a brief stay, or that his lawyer be allowed to present his case, so he would not be seen as waiving his right against self-incrimination. The university declined, and so he went to court. He requested a stay of the hearing until September when testing on the accuser’s rape kit would be complete and (he hoped) the evidence would exonerate him.

[Title IX Has a Cross-Examination Crisis]

The case came before Judge Timothy Black, an Obama nominee with a reputation for being a strong defender of civil liberties. But not on this matter. Having ruled previously against an accused student in a case out of the University of Cincinnati, Black ruled for Miami in this case. Breezily, the judge claimed that “Miami University has established extensive procedures to protect the due process rights of students accused of sexual assault.” (The school has been sued four times since the Dear Colleague letter; it lost two of those cases, and the third featured allegations that the university investigator had pressured exculpatory witnesses not to testify.) The accused student, he noted, could choose to testify or not—but, of course, this wasn’t a choice, because his chances of a not-guilty finding would be close to zero if he did not present a defense.

On his way out the door, Black even provided some free legal advice to Miami. He observed that (despite a university policy that nominally did not hold an accused student’s silence against him), the university investigator had noted that several items in the case were unopposed because the accused student had declined to speak, on advice of counsel.

“If the Administrative Hearing Panel,” Black cautioned, “were to refer to allegations that Doe chooses to not respond to as ‘unopposed,’ it may raise due process issues; but no such issues are currently before the Court.” In other words, from Black to Miami: don’t use the word “unopposed” in the ultimate guilty finding.

As the Amara case showed, however, this issue seems unlikely to go away. And a court more concerned with civil liberties than offered by Black, or the judge in Amara’s case, could easily use the threat of criminal proceedings as a justification for requiring universities to provide more due process for the accused.