Sexual Assault on College and University Campuses

The media has widely covered the Fact Sheet issued on April 29 by the White House Task Force to Protect Students from Sexual Assault, in which the Task Force reported that one in five women is sexually assaulted while in college, most often during the freshman or sophomore year. The Task Force announced three measures designed to “better address sexual assault at our nation’s schools”: the launch of NotAlone.gov on May 6; the release by DOE at some future date of FAQs including guidance that “a survivor’s sexual history with anyone other than the alleged perpetrator shouldn’t be permitted during a judicial hearing,… that a previous sexual relationship doesn’t imply consent or preclude a finding of sexual violence, [a]nd that schools should take steps to protect and assist a survivor pending an investigation”; and that DOJ and DOE have reached agreement on each other’s role in enforcing laws that address sexual assaults on campus. The Fact Sheet focused on what the Task Force would soon be doing, but in terms of actual substance, the Fact Sheet did not contain much that was new.

Earlier in April, the media generally missed the fact that negotiators appointed by DOE to draft rules to implement the Campus SaVE Act included a requirement that the student claiming s/he was sexually assaulted and the accused student have “an adviser of their choice,” including a lawyer, at disciplinary hearings and other meetings as the case proceeds through the campus disciplinary process. Assuming the rule is finally adopted, which is where it appears to be headed, all colleges and universities will be required to permit attorneys to be involved in sexual misconduct disciplinary proceedings. If contained in the final rule, which is expected to be issued in November of this year, this will be a big change for many Codes of Student Conduct, which often provide that a student’s advisor is limited to a member of the campus community, and which state explicitly that no lawyers are allowed. It also will go beyond DOE’s own guidance on sexual assault under Title IX, which states that if an institution allows one student to have an advisor or lawyer, it must allow the other student the same opportunity to be represented by an advisor or lawyer. In our view, institutions would be well advised to assess their policies this summer, so that there is time to consider carefully how to implement what is on the horizon. We highlight four important questions that we believe should be considered:

• What will the attorney’s role be in the process? We anticipate that many colleges and universities will initially conclude that the attorney should be a silent advisor, or, as one lawyer famously described: “a potted plant.” But is that the best approach? Lawyers do not take an instruction to keep quiet well. One or the other is bound to speak out at the disciplinary hearing. And when one or both do, that raises the specter of a procedural violation, which is a basis for appeal in virtually every disciplinary process. Furthermore, the hearing is only one part of the process, and the proposed rule indicates that lawyer-advisors may be involved throughout. Institutions should at least consider a broader role for the students’ legal counsel.
• What do we do when one student can afford an attorney, but the other cannot? This is of particular concern because the student most likely to hire legal counsel is the accused student, since allegations of sexual assault carry the risk of criminal charges in addition to campus disciplinary action.
• If the student(s) have a lawyer, should the institution as well, either at the hearing or throughout the process?
• If attorneys are permitted as advisors in sexual assault cases, how is it fair to exclude them from other serious disciplinary matters? Once there is a foot in the door for attorneys in one type of disciplinary case, colleges and universities should consider whether lawyers should be permitted to serve as advisors in other serious disciplinary matters not involving sexual misconduct. Other matters, like theft, assault, or academic dishonesty, may carry sanctions as severe as those in cases involving sexual assault. There is a seemingly obvious unfairness in having two types of cases – those with lawyers and those without – when the stakes may be equally high.

If you have any questions, or would like help in drafting a new lawyer-inclusive policy, please contact anyone in our Higher Education Law Group.