Campuses or Courtrooms? Government Involvement in U.s. and U.k. University Sexual Misconduct Response

• Publication year: 2022

Campuses or Courtrooms? Government Involvement in U.S. and U.K. University Sexual Misconduct Response

Courtney Hill Robinson ^*

Table of Contents

I. Introduction........................................................................................294

II. Background........................................................................................295

A. Origins of U.S. and U.K. Higher Education Systems........295
B. The Role of Student Conduct Proceedings in Higher Education...........................................................................296
C. U.S. Law: Title IX..............................................................299

i. Legislative Intent and History.....................................299
ii. Governmental Oversight of University Discipline Under Title IX............................................300

D. U.K. Law: Equality Act 2010.............................................301

i. Legislative Intent and History.....................................301
ii. Governmental Oversight of University Discipline Under Title LX............................................302

III. Analysis..............................................................................................303

A. Governmental Oversight....................................................303
B. Differentiating University Conduct Proceedings from the Criminal Justice System......................................306
C. Recommendations.............................................................308

IV. Conclusion.........................................................................................310

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I. Introduction

The handling of sexual misconduct allegations on college and university campuses has received widespread public attention in recent years.¹ This attention is reflective of a problem that affects a significant number of students annually. A 2019 study showed that 13% of U.S. college students surveyed had experienced nonconsensual sexual contact by physical force or inability to consent in the time since the student enrolled at the institution.² With 15.9 million students enrolled in U.S. institutions of higher education,³ campus sexual assault is an area of significant concern. This concern, however, is not limited to the U.S. The U.K. also experienced a recent reckoning with the prevalence and handling of sexual misconduct on university campuses.⁴ With almost 2.7 million students enrolled in U.K. institutions of higher education, the concern is salient across the pond, as well.⁵

Given that higher education and government have a history of entanglement,⁶ it is unsurprising that government has intervened in many countries to address the crisis of campus sexual misconduct. However, the U.S. and U.K. methods of intervention reflect two vastly different approaches.⁷

This Note will discuss the legislative approaches taken in the U.S. and the U.K. to address sexual assault on university campuses by comparing Title IX⁸ with the Equality Act 2010.⁹ This Note will focus on the distinct statutory and

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regulatory differences between the U.S. and U.K. approaches to managing campus sexual misconduct. This Note will conclude with a discussion of a proposed "middle-ground" approach, which strives to employ the benefits of each country's approach while mitigating the challenges that each country currently faces.

II. Background

A. Origins of U.S. and U.K. Higher Education Systems

The founding principles and features of U.S. and U.K. higher education provide helpful context for comparing each country's modern-day approaches to sexual misconduct. The two countries share many common origins in the establishment of their early institutions and generally relied on similar concepts of higher education when creating new universities.¹⁰

English higher education is widely thought to have its origins at Oxford, which is estimated to have been established around the late eleventh century.¹¹ Early English higher education, however, looked very different from our understanding of the university today.¹² Both Scottish and English universities experienced a transformation following the eighteenth-century Enlightenment, which pushed higher education in a direction more familiar today.¹³ This transformation was influential as the U.S. higher education system began to emerge. In the early American colonies, "settlers began organizing colleges within a decade of their arrival,"¹⁴ and these fledgling universities were seen as an extension of the English colonial strategy.¹⁵

While U.S. and U.K. universities share common roots, some key differences arose in the nineteenth and twentieth centuries. University governance is one area where English and American universities diverged early on. While English universities had "evolved from self-governing groups of teachers and students or from within a court or church hierarchy" and were largely governed from within, American institutions were governed by outsiders,

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primarily members of colonial government.¹⁶ As will be discussed, this difference in governance structures continues to influence the ways higher education and government interact today.

B. The Role of Student Conduct Proceedings in Higher Education

The shared origins of U.S. and U.K. higher education systems also influenced their early approaches to student misconduct. The doctrine of in loco parentis, literally meaning "in the place of a parent,"¹⁷ dominated early English and American thinking about university discipline of students. The doctrine had evolved from English common law, and established that the university, standing in for parents of their students, was the arbiter of student discipline and courts would largely defer to the university's judgment on matters of discipline.¹⁸ By the early 20^th century, the U.S. judicial system even legally recognized the concept of in loco parentis in Gott v. Berea College.¹⁹ The in loco parentis concept continues to permeate modern thinking about student conduct. As U.S. Supreme Court Justice Hugo Black noted in 1969, "[s]chool discipline, like parental discipline, is an integral and important part of training our children to be good citizens—to be better citizens."²⁰ As recently as 2018, Sam Gyimah, the U.K. Minister for Universities, Science, Research and Innovation, said in a speech, "the universities need to act in loco parentis;"²¹ while this statement was not made in the context of student conduct, it demonstrates the breadth and depth with which the concept was instilled in higher education.

In the United States, the concept of in loco parentis diminished as a legal doctrine following a series of cases in the 1960s which rejected the idea "that no process was due because the students consented to an in loco parentis

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relationship with a college by their very enrollment therein."²² The initial case that rejected the in loco parentis doctrine was Dixon v. Alabama,²³ which established minimum due process rights for students facing disciplinary processes at institutions of higher education. Like in Dixon, judicial action in the U.K. established students' rights to some level of due process in university disciplinary procedures in The King v. Chancellor of the University of Cambridge.²⁴ Cambridge differed from Dixon in that the English court applied principles of corporate law to erode at the protections of in loco parentis, while Dixon utilized an individual rights approach to do the same. While the doctrine has waned from a legal perspective, the in loco parentis concept continues to shape the expected purposes of student conduct proceedings in higher education.

While student conduct regulations, like criminal regulations, reflect a community's norms, expectations, and accountability processes for its members, the purpose of student conduct is distinctly different from that of the criminal justice system in society.²⁵ This distinctly separate system, however, comes with its own challenges. Thomas Jefferson once remarked while lamenting the difficulties of establishing a university, "[t]he article of discipline is the most difficult in American education."²⁶ As a foundational document for student affairs in U.S. higher education later stated, "the college should make optimum provision for the development of the individual and his place in society through . . . [t]he treatment of discipline as an educational function designed to modify personal behavior patterns and to substitute socially acceptable attitudes for those which have precipitated unacceptable behavior."²⁷ U.S. courts have also endorsed the idea that the student disciplinary process serves a distinct function, separate from the criminal process:

The discipline of students in the educational community is . . . a part of the teaching process . . . . [T]he disciplinary process is not equivalent to the criminal law processes of federal or state criminal law. For, while the expelled student may suffer damaging effects, sometimes irreparable, to his educational, social, and economic future, he or she may not be

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imprisoned, fined, disenfranchised, or subjected to probationary supervision. The attempted analogy of student discipline to criminal proceedings against adults and juveniles is not sound.²⁸

The idea that university student conduct processes are distinct in purpose and process from criminal justice also permeates the higher education landscape in the U.K. In 1994, the Council of Vice-Chancellors and Principals, now known as Universities UK, published the Final Report of the Task Force on Student Disciplinary Procedures, more commonly referred to as the Zellick Report.²⁹ The Zellick Report provided guidelines for universities to follow in their student disciplinary procedures; while they were not mandatory, many universities used the Zellick Report as a baseline in the absence of any formal requirements.³⁰ Notably, the Zellick Report advised that sexual assault should never...