Education Department Holds Both Complainant & Respondent Must be Allowed to Respond if the Other Appeals
The U.S. Department of Education last year found a Maryland university in violation of the Clery Act for failing to allow a complainant in a sexual misconduct case to participate in the respondent’s appeal. The Department held (click here to read the findings) that the statute and regulations “require that all parties be able to fully participate in the disciplinary process from its initial stages until a final decision is reached.”
What this means for institutions of higher education is that disciplinary policies addressing sexual assault, dating violence, domestic violence, and stalking (collectively the Violence Against Women Act or VAWA offenses) must provide a transparent appeals process (if one is offered). The institution must notify the other party or parties if a complainant or respondent files an appeal, and afford them the opportunity to respond.
This process need not involve meetings or hearings and may involve “papers only”. As noted by the Department “such access may be achieved simply by permitting both sides to file a narrative response and supporting documents with assurance from the institution that their materials will be considered by the appeals official.” We recommend that the timeframe for responding be consistent with that for filing an appeal.
The Clery Act requires that VAWA disciplinary proceedings “provide a prompt, fair, and impartial investigation and resolution”. The Department’s implementing regulations interpret this to mean that any proceedings must be “transparent to the accuser and accused”. Consistent with these requirements, the purpose here is to ensure that no parties are surprised by a change in findings, and that if they have information to contribute to an appeal they may do so.
In the proceedings at issue in this case the Department asked the institution to vacate the original appellate decision and revert the case back to the point at which the respondent appealed. The University then afforded the complainant notice of the appeal and an opportunity to respond. The Department determined that this process “appeared to comply with Clery Act requirements.”
We recommend, based on ongoing conversations that we’ve had with the Department, that if an institution doesn’t have this process in formal rules for VAWA proceedings that they immediately add it to procedures or practices including an up-front notice of it to any current or future complainants and respondents. Institutions should then add it to formal policies as soon as possible (likely during revisions made in response to the forthcoming Title IX regulations) and make note of it in their 2023 Annual Security Report.
This blog does not provide legal advice and does not create an attorney-client relationship. If you need legal advice, please contact an attorney directly.
