The Threat of Expulsion as Unacceptable Coercion: Title Ix, Due Process, and Coerced Confessions

• Publication year: 2017

The Threat of Expulsion as Unacceptable Coercion: Title IX, Due Process, and Coerced Confessions

Casey McGowan

THE THREAT OF EXPULSION AS UNACCEPTABLE COERCION: TITLE IX, DUE PROCESS, AND COERCED CONFESSIONS

Abstract

The nation's recent focus on the prevalence of sexual assault has rightfully prompted colleges and universities to take a second look at their sexual assault policies. Bringing justice to those who have committed sexual assault, and violated schools' codes of conduct, is worthy. However, one concern is that the pendulum has swung too far to the left. Schools have instituted stricter policies without considering the due process rights of the accused. Problematically, the statements made by the accused, under limited due process safeguards, can be used in criminal proceedings. This Comment argues that it is unconstitutional to admit in a state criminal proceeding statements that were made by students accused of sexual assault in a college disciplinary hearing. Specifically, it posits that such statements can be considered coerced confessions in violation of due process.

This Comment pays particular attention to the lack of safeguards present in the college disciplinary process for adjudicating sexual misconduct. Pressure from the Obama Administration for colleges and universities to transform their sexual assault response procedures ushered in sweeping changes that paid little attention to the accused student's due process rights. This approach to college sexual misconduct policies, while valuable for victim protection purposes, is troublesome when the accused student is facing, or will later face, criminal charges. This Comment argues that the threat of expulsion used by college officials to elicit statements from an accused student is coercion that becomes unconstitutional when a prosecutor seeks to admit the statements into evidence in a criminal case.

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Introduction...........................................................................................1177

I. The College Disciplinary Proceeding.....................................1180

A. Title IX and Recent Guidance Documents.............................. 1180

1. Dear Colleague Letter...................................................... 1181
2. Questions and Answers on Title IX and Sexual Violence . 1182
3. The Not Alone Report ...................................................... 1182

B. Title IX Requirements for College and University Sexual Violence Proceedings ............................................................. 1183
C. Three Common Investigatory Models..................................... 1185

1. The Traditional Model...................................................... 1185
2. The Single Investigator Model .......................................... 1186
3. The Hybrid Model ............................................................ 1186

II. Lack of Safeguards in College Disciplinary Proceedings and Efforts to Protect Due Process.......................................1187

A. Lack of Safeguards ................................................................. 1187

1. The Preponderance of the Evidence Standard................. 1189
2. Cross-Examination ........................................................... 1190
3. Appeal ............................................................................... 1191

B. Policymakers' Response to Tougher Sexual Violence Policies ................................................................................... 1191

1. Affirmative Consent.......................................................... 1191
2. Mandatory Sentencing ...................................................... 1192
3. Mandatory Transcript Reporting ..................................... 1192
4. National Response ............................................................ 1192

III. Coerced Confession Doctrine..................................................1193

A. History.................................................................................... 1194
B. Colorado v. Connelly: The Predicate Finding of Law Enforcement Coercion............................................................ 1195
C. A Critique of connelly ............................................................ 1198

IV. Statements of the Accused as Coerced Confessions...........1200

A. The Effects of Connelly in State Court ................................... 1200
B. Issue of Workplace Threat of Termination as Analogous to College Officials' Threat of Expulsion ................................... 1203
C. Implications ............................................................................ 1205

Conclusion...............................................................................................1206

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Introduction

Designing a sufficiently fair and appropriate structure for college and university¹ sexual misconduct proceedings has long been a unique challenge for legal scholars and college officials seeking to ensure that both the complainant and the accused are treated fairly and impartially.² The prevalence of sexual assault on college campuses has only heightened the need for colleges to ensure that their procedures are adequate and efficient.³

Recently, Title IX has emerged as a salient tool for addressing sexual violence on campus.⁴ Title IX is a federal law that provides, "[n]o 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."⁵ Although Title IX

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had not previously applied to campus policies on sexual violence, three new documents ushered in sweeping changes: the U.S. Department of Education's Dear Colleague Letter (Dear Colleague Letter), the Department of Education's Office for Civil Rights' Questions and Answers on Title IX and Sexual Violence (Questions and Answers), and the White House Task Force to Protect Students from Sexual Assault's Not Alone report.⁶ Many colleges and universities did not comply with these requirements, causing the Department of Education (DoE) to investigate over a hundred of them.⁷ Schools rushed to transform their policies and procedures on sexual violence out of fear of losing federal funding.⁸

This Comment focuses on the collateral consequences of college disciplinary proceedings, specifically the effect of these proceedings on the accused student's due process rights in a concurrent or subsequent criminal proceeding. In the aftermath of the Title IX policy changes and the resulting transformation in colleges' sexual violence procedures—all of which sought to provide more services and protections for identified victims of sexual violence⁹ —little attention has been paid to the effects of these policy changes on the constitutional rights of accused students. Individual colleges and universities have offered only minimal safeguards to accused students as their policies have reformed.¹⁰ Only a few state legislatures are pushing for more protection of the rights of the accused.¹¹ This Comment argues that the lack of safeguards present in the college disciplinary process taints the evidence that results from that

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process. For that reason, it violates due process to allow statements of the accused student to be used against him or her in a criminal proceeding.

This Comment proceeds in four Parts. Part I explains the general college disciplinary process for sexual assault complaints. First, this Part discusses Title IX requirements that are applicable to all colleges and universities that receive federal funding. Next, it details the three basic investigatory models that are most commonly used by colleges and universities in responding to sexual assault.

Part II identifies the various safeguards that are lacking in college and university disciplinary procedures and explains how those deficiencies taint statements made by the accused student. Next, this Part examines state legislatures' reactions to due process concerns, particularly the unwillingness of states to mandate that colleges and universities provide certain due process safeguards to accused students.

Part III provides the constitutional backdrop for the coerced confession analysis. The Supreme Court has not yet addressed the constitutionality of allowing the statements made by an accused student during a college disciplinary proceeding into a state criminal proceeding. In Colorado v. Connelly,¹² the Court insisted that "coercive police activity is a necessary predicate to the finding that a confession is not 'voluntary' within the meaning of the Due Process Clause of the Fourteenth Amendment."¹³ This Part argues that the Connelly holding should be extended to recognize threats of expulsion by school officials as a form of coercion.

Part IV discusses state court decisions about whether to interpret their own constitutional due process provisions in a manner that is consistent with Connelly, paying particular attention to those states that have rejected the U.S. Supreme Court's stingy approach in favor of a more generous due process standard. This Part explores cases in which state courts have held, as a matter of state law, that egregious police conduct is not a necessary predicate for finding a due process violation because private parties can be sources of coercion. This Part particularly considers workplace confession cases in which courts have held that statements were coerced, despite the absence of egregious police activity, based on a threat of firing by the employer. It argues that statements made by accused students in campus disciplinary proceedings are similarly coerced if

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they are made under threats of expulsion. Lastly, this Part explains the implications of holding that the use of such statements in a criminal proceeding is unconstitutional.

I. The College Disciplinary Proceeding

All...