Due Process Duly Unavailable at UD

This month, the University of Delaware (UD) changed its sexual misconduct procedures from a full hearing to a one-on-one investigation by a “trained professional,” thereby becoming yet another school to adopt the problematic “single investigator model.”

As part of this updated policy, UD’s Office of Equity and Inclusion has appointed two staff members as Title IX investigators. The new hires not only engage in sexual assault education and outreach, but conduct the entire investigatory process when there is a misconduct allegation. With such a broad focus, it is difficult to imagine that two people will successfully address sexual misconduct on this campus of nearly 17,000 undergraduate students without violating due process.

The new policy indicates that one trained professional will investigate a report of sexual misconduct and conclude whether the respondent is guilty or not. This construct allows one individual to act as detective, judge, and jury by single-handedly deciding the fate of the accused. By allowing one person to act in all of these roles, there is no check on the investigator’s power. That individual’s biases and mistakes may persist in an investigation unrestrained.

Among the protections normally afforded a criminal defendant, but lost with the single investigator model, is the cross-examination and questioning that occurs from a full hearing procedure. UD’s sexual misconduct policy states:

The investigator will give the complainant and respondent the opportunity to present questions they believe should be asked of the other party and witnesses and the opportunity to respond to statements made by others, if deemed appropriate by the investigator.

The policy allows the investigator to pick and choose which questions to ask and which statements will be responded to, creating another area that can be tainted by bias since the investigator is not checked by other individuals. Accordingly, the single investigator model is extremely dangerous in campus settings. This model provides a lower burden of proof than criminal courts, while the stakes for the accused (e.g. a sexual assault finding, expulsion from school, diminished employment or graduate school opportunities) are extremely high.

Allowing one person to be the sole investigator and judge of an allegation substantially threatens the due process of the accused.

UD, like many other universities under investigation by the U.S. Department of Education’s Office for Civil Rights, has many incentives to curtail sexual misconduct on its campus, including the threat of losing federal funding. This threat potentially taints the due process afforded to students by pressuring administrators to crack down on anything that could be labeled as sexual misconduct. No university wants to be publicly criticized and threatened with the loss of federal funding, and thus pressure exists that may compromise the rights of the accused.

According to UD’s website, the responsibilities of the Title IX investigators are lengthy and extensive:

Stone and Kelly [UD’s Title IX investigators] are responsible for ensuring those involved in investigations understand the investigatory process, their rights and responsibilities, and how to access other resources as necessary. They also are charged with ensuring a well-documented investigative process as well as updates and tracking of all Title IX incidents, collaborating as needed with on- and off-campus resources, including law enforcement and victim services, in resolving complaints. In addition, Stone and Kelly will educate the campus on the laws surrounding sexual misconduct and how to respond appropriately to an incident.

Campus sexual misconduct allegations require time and attention, just like any criminal allegation. It would seem that investigating the allegation is the primary duty of an investigator. By expanding the investigator’s role to encompass all of the responsibilities outlined above, biases and mistakes will go unchecked, and the due process rights of the accused may be violated. UD’s new policy eliminates the hearing panel procedure, making the investigator the detective, judge, and jury, as well as the record keeper, educator, and resource provider. Placing all of these responsibilities on one individual eliminates the checks and balances that result from multiple people acting in these important roles.

No one wants sexual misconduct on campus. A campus that is free from sexual assault and rape is an extremely desirable goal; however, compromising the due process of the accused threatens the civil liberties of all students. Universities cannot surrender due process in response to Title IX compliance pressures. Universities must use their resources to educate students on sexual misconduct awareness, prevention, and reporting. I hope that UD realizes the great responsibility it has placed on its Title IX investigators and changes its sexual misconduct policy to a more reliable and fairer procedure. Until UD alters its sexual misconduct policy, all accused students have reason to fear for their due process rights.

Rachael Russell is a FIRE summer intern.