Navigating Title IX and Campus Sexual Misconduct Defense – Advocacy’s Wild West, 0619 RIBJ, RIBJ, 67 RI Bar J., No. 6, Pg. 11

• Author: John R. Grasso, Esq. Law Office of John R. Grasso Providence
• Position: Vol. 67 6 Pg. 11

Navigating Title IX and Campus Sexual Misconduct Defense – Advocacy’s Wild West

Vol. 67 No. 6 Pg. 11

Rhode Island Bar Journal

June, 2019

May, 2019

John R. Grasso, Esq. Law Office of John R. Grasso Providence

Just before 1:00 a.m. on September 1 7, 2016, Bob called for an Uber to bring him and a young lady he just met to his dormitory 1.02 miles from the downtown club where the two had unintentionally bumped into one another an hour or so earlier. During that hour, the two chatted. Betsy sipped on a drink that she had been holding since Bob first approached her. She hadn’t purchased another the entire time they were together and Bob had finished his one only beer of that evening before he introduced himself.

Seemingly sober, the two flirted until they ultimately decided to go back to Bob’s dormitory together. Bob called for an Uber at 12:59 a.m. It arrived 4 minutes later and 5 minutes after that, at 1:08 a.m., Bob and Betsy stepped onto the sidewalk in front of Bob’s dormitory building.

Until that moment, neither Bob nor Betsy discussed where the other attended college nor did they talk about where they resided.

When the Uber dropped them off in front of Bob’s dormitory, Betsy realized that not only did Bob attend her college, he lived a few buildings from her. In that moment, Betsy’s mood changed and 7 minutes later, Bob was tucking himself into his bed alone.

Thirteen months and a day after that, Betsy filed a Title IX complaint with her college. In it, she alleged that Bob digitally penetrated her during the 5 minute Uber ride to campus. She claimed that when the two got out of the Uber, she told Bob that she had changed her mind and just wanted to go to sleep. She said that Bob got angry, physically assaulted her by throwing her to the ground in front of the entrance to her dormitory, followed her into her building, up the stairs, down the hallway, pushed his way into her room, tore off her clothes and raped her.

If Betsy believed what she reported, the evidence would prove that Betsy possessed a distorted recollection of the events of her brief encounter with Bob.

A few days later, the Title IX Office informed Bob that he was the target of a Title IX investigation, that another student had accused him of raping her more than a year earlier, that he was ordered to have no contact, and that he would be contacted by an investigator in the near future.

Sexual assaults certainly happen on campus. The Jeanne Clery Disclosure of Campus Security Policy and Campus Crime Statistics Act or Clery Act,^[1] requires colleges and universities that participate in federal financial aid programs to keep and disclose information about crime on and near their respective campuses. There is a monetary penalty for failing to comply.

“Title IX” has become part of campus vocabulary. Without adequate guidance, that 1972 federal law – intended to prevent gender discrimination in schools – has been applied to reported sexual violence on college campuses. “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.”^[2]

In Davis v. Monroe Cty. Bd. Of Educ.^[3], the Supreme Court held that Title IX applied to a school’s disparate provision of programs, aid, benefits or sanction on the basis of sex. It also prohibits a school’s deliberate indifference to acts of sexual harassment committed by one student against another.

Most folks on campus are familiar with the term but too few understand it – because it is unclear, undefined, and arbitrarily administered.

Campus sexual misconduct is handled much differently at Providence College than it is at Brown University or URI. I have participated in Title IX cases on every Rhode Island campus and no two colleges or universities follow the same process. The result is disparate and inadequate treatment of the very students it intends to protect. Procedures for campus sexual misconduct investigation and discipline are all over the board, and much of the blame belongs in Washington for its failure to promulgate clear and consistent mandates.

While it is important to protect students and provide a space for unbiased investigation, this is not how it actually plays out. When a Title IX complaint is made, some colleges rely on their own employees to investigate, while others hire external investigators. In either case, these “investigators” most often lack relevant investigation experience. Many are attorneys with a background in labor law and none have the skill set of a police detective. From the start, the campus disciplinary system is doomed when it endeavors to investigate criminal conduct without investigators experienced in criminal investigations.

Most campuses assemble a hearing panel (even though federal guidance does not require a hearing). These folks are the jury who decide guilt and punishment. Rules of evidence do not apply. Unlike a trial, these hearings fail to include a gatekeeper to control the flow of evidence. Instead, the admissibility of evidence is a free for all.

At the University of Rhode Island, for example, the panel is composed of mostly students who sit the accused at the same table as the victim.^[4] Imagine several young adults, some still teenagers, judging their colleagues, and then having to call one of them a liar. Without any legal training, these students are called upon to employ a legal standard – fair preponderance of evidence. At Roger Williams University, for example, the hearing panel was told that if the weight of the evidence is “equal plus a feather,” then it has to find the accused guilty.^[5]

Too often, these unprepared jurors decide another...