re: Title IX is an unmitigated pox upon universities

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literally everything you just said is incorrect.

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Just a taste. This happens all over the country. Only three states guarantee the right to counsel in these hearings. (NC, AR, ND)

May need to rethink what you believe the word "literally" means

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In 2017, U.S. District Judge Philip Simon expressed puzzlement about the restrictions that Notre Dame placed on lawyers for accused students:

They can’t talk with the accused; they can’t ask questions; they can’t even pass notes to the accused. They are only permitted to consult with the students during breaks, given at the Hearing Panel’s discretion. If, for example, a witness says something very inculpatory about the accused, and there is no break, the student can’t talk with his advisor or lawyer about what he should ask the witness. And by the time the accused finally has a chance to talk with his advisor on a break, the witness could be long gone.[5]

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Similarly, in July 2018, Justice Steven Perren in California’s Second Appellate Division commented in a case against the University of California, Santa Barbara, “I read this record, and I was stunned at a university procedure which purports to be fair and equitable puts a kid [the accused student was a freshman] who’s attempting to get a college education in the position of, essentially, a lawyer in a major sexual assault case”—especially since, he noted, a representative of the university’s general counsel office participated in the hearing.[6] This article examines the disadvantages of denying meaningful legal representation to the accused in campus misconduct cases and examines the role of state legislation in addressing these concerns.

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Consider, for example, a case from James Madison University. After a university disciplinary panel found an accused student not guilty in 2014, his accuser appealed to a three-person board whose members, not involved in the original hearing, reviewed the case de novo. The accused student and his legal representative had only limited rights to see the new evidence the accuser offered. The appeals board found the accused student guilty on the basis of that new evidence, and JMU suspended him for five and a half years. If university procedures had allowed a lawyer for the accused student to present evidence before the appeals board, the university’s decisionmakers would have learned that a voicemail submitted only during the appeal by the accuser, in which she sounded heavily intoxicated, actually came from a different date and thus could not have shown her intoxication on the night of the incident. Instead, it was not until her deposition in later federal litigation that one of the JMU appeals board members learned this critical piece of information.[11] The procedural unfairness was costly: the court ultimately ordered the university to pay $849,231.25 in attorneys’ fees.[12]

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Not allowing the accused meaningful legal representation also harmed the university’s interests in a 2014 case at DePauw University. A female student claimed that she had been too intoxicated to consent to sex with a male student, Ben King, several weeks earlier. Under then-existing university policy, King could not have a lawyer accompany him even to look at the school’s investigative file, much less to speak for him at the hearing. He was found guilty. The university’s investigator focused her inquiry on determining the accuser’s level of intoxication. But DePauw defined sexual assault not as having sex with an intoxicated party, but as “engag[ing] in sexual activity with a person one knows or should know is incapacitated.” In other words, the relevant question was not whether the accuser was intoxicated, but whether King knew or should have known that she was. In an order granting King’s request for a preliminary injunction, U.S. District Judge William Lawrence found “very little evidence” that King knew or should have known that the accuser—whom he had only encountered a couple of times before the incident—was incapacitated; apart from the intoxication ratings, the only evidence DePauw cited (that she was acting “giggly” and “chatty,” out of character for her) would have been meaningless to the accused student.[13] It is possible, of course, that a student like King might detect a university misapplying its own definition of sexual assault and raise this matter during a hearing. But realistically, such attorney-like behavior is beyond the ability of most college students. If King actually had been represented by counsel, it seems likely that the lawyer would have pointed out DePauw’s errors at the beginning of the process and thus spared all parties a protracted litigation process.

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The status quo at colleges across the country limits students’ right to counsel in various ways. Some schools like the University of California, Davis flatly prohibit (or reserve the right to prohibit) the presence of legal counsel in student conduct hearings. These schools maintain secrecy with respect to outsiders with rules such as, “Hearings are closed except to the hearing panel or hearing officer, the accused student, the reporting party, and the witnesses . . . unless otherwise approved.”[30] At other institutions, including the University of California, Irvine, counsel may be present at a hearing but “may be excluded from participating.”[31]

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Other colleges, such as the College of William and Mary, only allow counsel to serve as a “silent supporter,” and then only upon two days’ prior notice. However, W&M acknowledges that the stakes are higher in a quasi-criminal case and permits participation of counsel if:

the hearing exposes him/her [the student] to potential criminal action outside the College’s conduct process. The determination regarding the participation of legal counsel is final, and legal counsel will participate only to the extent authorized. Under no circumstances will the attorney be permitted to question witnesses or other parties to the proceedings, or to serve as a witness. The College may have its own legal counsel or advisor present if a student opts to have legal counsel present.[32]

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