IANNUCCI (DO NOT DELETE) 4/25/2017 3:27 PM [609] SAMANTHA IANNUCCI* “Due” the Process: The Sufficiency of Due Process Protections Afforded by University Procedures in Handling Sexual Assault Allegations Introduction ....................................................................................... 610 I. Goals, Interests, and Governing Law in the Criminal Justice System and Higher Education Institutions ................. 614 A. The Criminal Justice System .......................................... 614 1. Protecting the Community ........................................ 615 2. Oregon Law Precluding Rape ................................... 616 3. “In [A]ll [C]riminal [P]rosecutions, the [A]ccused [S]hall [E]njoy . . .” ................................................... 617 a. Beyond a Reasonable Doubt .............................. 617 b. Criminal Adjudication ........................................ 617 c. Rights to Appeal ................................................. 618 B. Higher Education ............................................................ 618 1. Preserving the Educational Environment .................. 618 2. Sexual Misconduct .................................................... 619 3. Rights of the Accused and the Accuser .................... 619 a. Preponderance of the Evidence .......................... 620 b. Student Conduct and Community Standards Process ................................................................ 620 c. Right to Appeal................................................... 621 II. Liability Caused by the Coexistence of the Criminal Justice System and Higher Education .................................... 622 * J.D. Candidate, 2017, University of Oregon School of Law; B.A. University of Montana. I would like to thank Professor Margie Paris for providing guidance and input on this Comment. And thank you to my parents, Jim and Charlene, for their unconditional love and support throughout law school and over the past twenty-seven years. IANNUCCI (DO NOT DELETE) 4/25/2017 3:27 PM 610 OREGON LAW REVIEW [Vol. 95, 609 A. Potential Infringement on the Rights of the Victim ........ 623 B. Potential Infringement on the Rights of the Accused ..... 623 C. Constitutional Claims in Practice ................................... 626 III. Recent Developments in Higher Education and at the University of Oregon.............................................................. 627 A. “Dear Colleague” Letters ................................................ 628 B. Legislation ...................................................................... 631 IV. Recent Policy Changes at the University of Oregon .............. 634 A. Twenty Students Per Week: The Final Report of the University Senate Task Force to Address Sexual Violence and Survivor Support....................................... 634 1. Critical Policy Changes ............................................. 635 2. Prevention and Education ......................................... 636 3. Administrative Changes ............................................ 636 4. Initial Recommendations for Immediate Action ....... 637 B. Transition ........................................................................ 638 C. President Schill: A New Direction.................................. 639 Conclusion ........................................................................................ 640 INTRODUCTION hether it be in a song1 nominated for a Grammy and an Academy Award or as the topic of an ESPN documentary series,2 sexual assault is a topic of conversation and it’s not going anywhere. This Comment will first explore the goals, interest, and laws that govern sexual assault in two institutions: higher education and the criminal justice system. Then, this Comment will discuss the rights of the victim and the perpetrator in the context of each of those institutions. Finally, this Comment will discuss potential legislation and policy changes made at the University of Oregon, which will illustrate why the institution of higher education and the criminal justice system must each maintain their autonomy. In order to understand the dynamic between those institutions, this Comment will 1 LADY GAGA, TILL IT HAPPENS TO YOU (Interscope Records 2015) was used in the 2015 documentary The Hunting Ground and was nominated for a Grammy for Best Song Written for Visual Media and for an Academy Award for Best Original Song. AWARDS, http://thehuntinggroundfilm.com/awards/ (last visited Mar. 14, 2017). 2 Fantastic Lies (ESPN 30 for 30 Mar. 13, 2016) is a documentary about a sexual assault scandal that rocked the Duke Lacrosse team a decade ago. W IANNUCCI (DO NOT DELETE) 4/25/2017 3:27 PM 2017] “Due” the Process: The Sufficiency of Due Process Protections 611 Afforded by University Procedures in Handling Sexual Assault Allegations continually discuss two recent, high-profile incidents involving sexual assault allegations made against college athletes. In April 2015, Jon Krakauer released an investigative novel that explored the handling of sexual assault investigations in Missoula, Montana.3 Krakauer’s much-anticipated book brought the prevalence and mishandling of sexual assaults on college campuses into the national spotlight. Although Krakauer’s book chronicled various victims’ sexual assaults, the most infamous account involved allegations against the University of Montana’s then-starting quarterback, Jordan Johnson.4 In February 2012, a University of Montana student reported being raped by Johnson, which led to an investigation by the University of Montana.5 The university ultimately found Johnson to have committed sexual misconduct and subsequently expelled him.6 Clayton Christian, the Commissioner of Higher Education in Montana, overturned the University of Montana’s decision to expel Johnson and required the University of Montana to further investigate the allegations.7 The University of Montana hired an independent investigator, who ultimately determined that Johnson had committed sexual misconduct.8 Dean of Students Rhondie Voorhees disagreed with the investigator’s conclusion, Johnson was reinstated at the University of Montana, rejoined the football team, and was allowed to continue his studies.9 In the interim, Johnson’s accuser had reported the sexual assault to the local police department.10 Johnson was charged with sexual intercourse without consent.11 Johnson was represented by Kirsten Pabst, who had resigned from her position as Deputy County Attorney for Missoula County, and David Paoli, a prominent 3 JON KRAKAUER, MISSOULA: RAPE AND THE JUSTICE SYSTEM IN A COLLEGE TOWN (2015). 4 Id. at 225. 5 Id. at 142. 6 Id. at 184–85. 7 Id. at 186–87. 8 Id. at 187. 9 Id. 10 Id. at 144. 11 Id. at 225. IANNUCCI (DO NOT DELETE) 4/25/2017 3:27 PM 612 OREGON LAW REVIEW [Vol. 95, 609 Missoula lawyer known for his “bulldog tactics.”12 Following a trial, Johnson was acquitted of the charge.13 Just a few years later, in March of 2014, another high-profile sexual assault case made headlines: a female student at the University of Oregon reported being sexually assaulted by three other students.14 All three were members of the University of Oregon men’s basketball team.15 The University of Oregon Police Department, assisted by the Eugene Police Department, investigated the sexual assault.16 The three alleged perpetrators remained on the team during March Madness,17 but were ultimately removed from the team and expelled from the University of Oregon.18 The Lane County District Attorney’s Office declined to pursue charges against the three perpetrators.19 Unlike the University of Montana, which immediately reinstated Johnson,20 the University of Oregon did not reinstate the three alleged perpetrators and all three subsequently enrolled at different universities.21 The difference in the appeals processes used 12 Id. at 226. 13 Id. at 299. 14 OFFICER JOHN LOOS, EUGENE POLICE DEP’T, INCIDENT INVESTIGATION REPORT 14–04131 (2014), http://media.oregonlive.com/ducks_impact/other/14-04131.pdf. 15 Id. 16 Id. at 4. 17 See Jay Cohen, Oregon Beats BYU 87–68 in NCAA Tournament, NCAA, http://www.ncaa.com/game/basketball-men/d1/2014/03/20/byu-oregon (last visited Mar. 11, 2017). 18 Sean Newell, Oregon Basketball Players Suspended After Rape Investigation, DEADSPIN (May 6, 2014, 1:34 AM), http://deadspin.com/oregon-basketball-players -suspended-after-rape-investig-1572259820. 19 Andrew Greif, Lane County District Attorney Details Why Oregon Basketball Players Were Not Charged in Rape Accusations, THE OREGONIAN (May 6, 2014), http://www.oregonlive.com/ducks/index.ssf/2014/05/lane_county_district_attorney.html. 20 Keila Szpaller, Higher Education Commissioner, Dean of Students Reinstated Expelled UM Quarterback, THE MISSOULIAN (Apr. 25, 2015), http://missoulian.com/news /local/higher-education-commissioner-dean-of-students-reinstated-expelled-um-quarter back/article_27e4dc45-4228-5a86-99b0-95e624471ab6.html (explaining how Johnson was ultimately reinstated by the University of Montana Dean of Students, Rhondie Voorhees). 21 See NORTHWEST FLORIDA STATE COLLEGE MEN’S BASKETBALL ROSTER 2014– 2015, http://nwfraiders.com/sports/mbkb/2014-15/roster (last visited Mar. 11, 2017) (illustrating that Brandon Austin was enrolled at the Northwest Florida State College during the 2014–2015 season); UTEP MEN’S BASKETBALL ROSTER 2015−2016, http://www.utepathletics.com/sports/m-baskbl/mtt/utep-m-baskbl-mtt.html (last visited Mar. 11, 2017) (illustrating that Dominic Artis is currently enrolled at the University of Texas at El Paso); UNIVERSITY OF HOUSTON MEN’S BASKETBALL ROSTER 2015–2016, http://www.uhcougars.com/sports/m-baskbl/mtt/hou-m-baskbl-mtt.html (last visited Mar. 11, 2017) (illustrating that Damyean Dotson is currently enrolled at the University of Houston). IANNUCCI (DO NOT DELETE) 4/25/2017 3:27 PM 2017] “Due” the Process: The Sufficiency of Due Process Protections 613 Afforded by University Procedures in Handling Sexual Assault Allegations by the University of Oregon and University of Montana could explain the difference in outcomes;22 however, it is unknown whether the three perpetrators at the University of Oregon ever exercised their rights to appeal.23 These cases illustrate that the handling of sexual assaults on campuses is anything but simple. Educational institutions receiving federal funds must comply with federal law, which may include mandatory reporting to local law enforcement.24 Guided by those federal laws, universities aim to protect the educational environment of their students.25 This goal is inherently different than ones underlying the criminal justice system, whose laws are meant to deter, punish, and rehabilitate the offender, all while providing retribution for the public and the victim.26 Ultimately, a sexual assault incident that implicates both the university and the criminal justice system creates a serious conundrum for a university, especially given the prevalence of such incidents in the campus environment.27 Universities are increasingly 22 See UNIV. OF MONTANA, UNIVERSITY OF MONTANA STUDENT CONDUCT CODE (Revised Aug. 27, 2013), http://www.umt.edu/vpsa/documents/Student%20Conduct%20 Code%20FULL%20-%20UPDATED%20AUG%2028%202012.pdf) [hereinafter UM STUDENT CONDUCT CODE] (providing for several layers of appeal, including to the Commissioner of Higher Education; UNIV. OF OR., UNIVERSITY OF OREGON STUDENT CONDUCT CODE (Revised June 29, 2015), http://policies.uoregon.edu/vol-3-administra tion-student-affairs/ch-1-conduct/student-conduct-code) [hereinafter UO STUDENT CONDUCT CODE] (last visited Mar. 11, 2017) (allowing for one layer of appeal) ). 23 See Family Educational Rights and Privacy Act (FERPA), 20 U.S.C. § 1232g (2012) (protecting student records, including records of misconduct, related to a student’s enrollment at an educational institution). 24 See The Jeanne Clery Disclosure of Campus Security Policy and Campus Crime Statistics Act, 20 U.S.C. § 1092(f) (2012); see also UNIV. OF MONTANA, OFFICE OF PUBLIC SAFETY/POLICE SEXUAL ASSAULT INVESTIGATION POLICY § III(IV)(B)(1)(i) (2014), http://www.umt.edu/policies/documents/Sexual%20AssaultPolicyProcedure.pdf (requiring a responding officer to “turn over” a crime scene to the local law enforcement if the responding officer suspects “Sexual Intercourse Without Consent” has been committed); UNIV. OF OR., UNIVERSITY OF OREGON POLICE DEPARTMENT POLICY MANUAL (July 16, 2015), http://police.uoregon.edu/sites/police.uoregon.edu/files/UOPD _Operations_Manual_PUBLIC_2015-07-20.pdf (lacking a requirement to hand over a crime scene to local law enforcement). 25 See, e.g., UNIV. OF OR., DIVISION OF STUDENT LIFE, STATEMENT OF NON- DISCRIMINATION, http://studentlife.uoregon.edu/nondiscrimination (last visited Mar. 14, 2017). 26 See, e.g., OR. REV. STAT. § 163.375 (2013). 27 In 2014, a psychology professor at the University of Oregon administered a survey to examine sexual assault at the University. Preliminary results of that survey revealed that at least thirty-five percent of female participants and fourteen percent of male participants IANNUCCI (DO NOT DELETE) 4/25/2017 3:27 PM 614 OREGON LAW REVIEW [Vol. 95, 609 concerned about students’ safety and the effectiveness of current protocols regarding sexual assault, but they are also concerned with the potential liability and exposure caused by sexual assaults involving current students.28 In fact, universities may face litigation from both the victim and the perpetrator.29 I GOALS, INTERESTS, AND GOVERNING LAW IN THE CRIMINAL JUSTICE SYSTEM AND HIGHER EDUCATION INSTITUTIONS A great temptation exists for universities to allow outside law enforcement and the criminal justice system to handle sexual assault allegations because, theoretically, universities could be able to effectively shield themselves from liability related to the mishandling of sexual assault allegations. However, due to the differing goals and interests of higher education institutions and the criminal justice system, universities must address sexual assault allegations concurrently with the criminal justice system. Moreover, different law applies in each context. Thus, now more than ever, higher education institutions must maintain their autonomy from the criminal justice system. A. The Criminal Justice System Various statutory authorities guide the criminal justice system, including state and federal law and state and federal constitutions. As it pertains to sexual assault, prosecutors, using evidence gathered by law enforcement, must determine whether, under the applicable statute, probable cause exists to charge an accuser with sexual assault. had experienced at least one instance of sexual contact without consent. Of those participants, ninety percent did not report the nonconsensual sexual contact to the university. Jennifer Freyd, The UO Sexual Violence and Institutional Behavior Campus Survey (2014), http://dynamic.uoregon.edu/jjf/campus /UO2014campussurveycontent.pdf [hereinafter UO Sexual Violence Survey]; Jennifer J. Freyd, The UO Sexual Violence and Institutional Betrayal Surveys: 2014 and 2015, Assessing Sexual Assault, Sexual Harassment, Perpetration, Institutional Betrayal, Student Attitudes, Student Health, Educational Engagement, and Participant Experience with the Survey, http://dynamic.uoregon.edu/jjf/campus/ (2014) [hereinafter UO Survey Assessment] (finding that ninety percent of students who reported having a nonconsensual sexual experience did not tell any university source). 28 See, e.g., Complaint, Austin v. Univ. of Or. et al., No. 15CV29383 (Lane Cty. Cir. Ct. 2015) [hereinafter Austin Complaint]; Complaint, Doe v. Univ. of Or. and Dana Altman, No. 6:15CV-00012-MC (D. Or. 2015) [hereinafter Jane Doe Complaint]. 29 Id. IANNUCCI (DO NOT DELETE) 4/25/2017 3:27 PM 2017] “Due” the Process: The Sufficiency of Due Process Protections 615 Afforded by University Procedures in Handling Sexual Assault Allegations 1. Protecting the Community The criminal justice system consists of law enforcement, prosecutors, pretrial and probation services, courts, and corrections services.30 In Eugene, Oregon, law enforcement includes the University of Oregon Police Department, Eugene Police Department, and the Lane County Sheriff’s Department.31 According to the Eugene Police department, its general goals are to “[r]educe crime, disorder and the fear of crime in Eugene; [f]oster a culture of service excellence; [e]nhance data led and community policing services; [r]ecruit, retain and develop a highly capable and professional workforce; [i]mprove communication and public engagement; and [l]everage technology to deliver effective and efficient policing services.”32 Its mission is to “promote safety and security, enforce laws, prevent crimes, and safeguard the constitutional rights of all people.”33 The Lane County District Attorney’s Office handles the prosecution of sexual assaults and rape in Eugene.34 According to the office’s website, its general mission and goals are to “[s]trive to improve public safety and quality of life by prosecuting the guilty, protecting the innocent, securing appropriate support for children and families and determining cause and manner of death in all cases of traumatic [sic] or unattended death.”35 If charges are brought by the Lane County District Attorney’s Office, the Lane County Circuit Court has jurisdiction to hear the case. That court, as well as all Oregon state courts, seek “[e]qual [j]ustice in the 21st [c]entury” and “lead the nation in providing fair, accessible, and timely justice to promote the rule of law, protect individual rights, and resolve conflicts.”36 30 Office of Justice Systems, Criminal Justice Data Improvement Program, http://www.bjs.gov/index.cfm?ty=tp&tid=4 (last visited Mar. 11, 2017). 31 Lane County Law Enforcement Agencies, https://www.lanecounty.org/cms/one.aspx ?portalId=3585881&pageId=4027787 (last visited Mar. 14, 2017). 32 Mission Vision Values, EUGENE POLICE DEP’T, http://eugene-or.gov/658/mission -vision-values (last visited Apr. 5, 2017). 33 Id. 34 Sexual Assault, LANE CTY. DIST. ATTORNEY’S OFFICE, http://lanecounty.hosted .civiclive.com/cms/One.aspx?portalId=3585881&pageId=5187369 (last visited Mar. 14, 2017). 35 Id. 36 Lane Cty. Circuit Court, Vision and Statement of Values, http://courts.oregon.gov /Lane /AboutUs/pages/vision.aspx (last visited Mar. 11, 2017). IANNUCCI (DO NOT DELETE) 4/25/2017 3:27 PM 616 OREGON LAW REVIEW [Vol. 95, 609 The court system encompasses both criminal and civil litigation that could stem from sexual assaults. The “Oregon [c]ourts provide justice and uphold the rule of law,” and the Lane County Circuit Court’s values include: “[f]airness, equality and integrity[,] [o]penness and timeliness; [i]ndependence, impartiality and consistency; [e]xcellence, innovation and accountability; [and] [r]espect, dignity, public service, and community well-being.”37 Thus, the overall theme among all of the players in the Eugene criminal justice system is that the guilty shall be punished, the innocent shall be protected, and the public at large will be protected. Most significant is the recognition that individuals’ constitutional rights must be respected. 2. Oregon Law Precluding Rape In Oregon, rape in the first degree is precluded by Oregon Revised Statute 163.375.38 Rape in the first degree occurs when “[t]he victim is subjected to forcible compulsion by the person . . . or [t]he victim is incapable of consent by reason of . . . mental incapacitation or physical helplessness.”39 The term “[f]orcible compulsion” is defined as “compel[ling] by [p]hysical force or . . . threat, express or implied, that places a person in fear of immediate or future death or physical injury to self or another person, or in fear that the person or another person will immediately or in the future be kidnapped.”40 The term “[m]entally incapacitated” is defined as “render[ing] [a person] incapable of appraising or controlling the conduct of the person at the time of the alleged offense.”41 Further, “[p]hysically helpless” is defined as “unconscious[ness] or . . . physically unable to communicate unwillingness to an act.” Finally, “[s]exual intercourse” is defined in its “ordinary meaning and occurs upon any penetration, however slight; emission is not required.”42 37 Id. 38 OR. REV. STAT. § 163.375 (2013). 39 Id. 40 OR. REV. STAT. § 163.305(2)(a)−(b) (2015). 41 Id. § 163.305(4). 42 Id. § 163.305(5). IANNUCCI (DO NOT DELETE) 4/25/2017 3:27 PM 2017] “Due” the Process: The Sufficiency of Due Process Protections 617 Afforded by University Procedures in Handling Sexual Assault Allegations 3. “In [A]ll [C]riminal [P]rosecutions, the [A]ccused [S]hall [E]njoy . . .”43 Once the accused is officially charged, the accused is afforded the protections and safeguards of the state and federal constitutions.44 These protections include the right against self-incrimination,45 the right to due process,46 and the right to counsel,47 to name a few. a. Beyond a Reasonable Doubt Arguably one of the greatest protections afforded to a criminal defendant is the requirement that the prosecution prove its case against the defendant “beyond a reasonable doubt.”48 Perhaps even more fundamental is that a defendant is presumed innocent until proven guilty.49 These protections are considered necessary because the conviction of a criminal offense has such serious consequences. b. Criminal Adjudication Once an accused party is formally charged, the accused party must be informed of the charges against that party.50 Moreover, the accused is now considered a defendant, and will be afforded the rights of a defendant.51 The defendant also must enter a plea to the charges.52 If the defendant pleads not guilty, and no plea agreement is agreed upon, a trial date is set.53 Following a trial, where the defendant and the government present evidence and witnesses, a verdict is reached.54 If the verdict is not guilty, the prosecution may 43 U.S. CONST. amend. VI. 44 See id.; see also OR. CONST. art. I, § 11. 45 See U.S. CONST. amend. V; see also OR. CONST. art. I, § 11. 46 See U.S. CONST. amend. V; see also U.S. CONST. amend. XI. 47 See U.S. CONST. amend. VI. 48 In re Winship, 397 U.S. 357, 362 (1970). 49 Coffin v. United States, 156 U.S. 432, 453 (1895). 50 Office of Justice Systems, The Justice System: What is the Sequence of Events in the Criminal Justice System?, https://www.bjs.gov/content/justsys.cfm (last visited Mar. 11, 2017). 51 Id. 52 Id. 53 Id. 54 Id. IANNUCCI (DO NOT DELETE) 4/25/2017 3:27 PM 618 OREGON LAW REVIEW [Vol. 95, 609 not appeal.55 If the verdict is guilty, the defendant may have a limited right to appeal, as well as the potential to seek other civil remedies.56 c. Rights to Appeal In Oregon, a criminal defendant who has pleaded guilty or has been found guilty by conviction has a statutory right to appeal;57 however, that right to appeal is limited.58 B. Higher Education Universities are governed by their own conduct codes, several different federal laws, and by and through Department of Education guidance. As such, universities must take into account the concerns of the victim, more so than criminal prosecutions, because universities must provide a safe learning environment for all students, including an environment free of sexual violence.59 1. Preserving the Educational Environment The primary goal of the University of Oregon Student Conduct Code is to “maintain and protect an environment conducive to learning and keeping with the educational objectives of the University of Oregon.”60 As such, the university seeks to educate students on how to be responsible for their actions and respectful of others.61 Most significantly, the Code acknowledges that students are a part of the campus community, as well as the larger community of Eugene, but that the Code is meant to preserve the standards set forth in the Code.62 Thus, if a student’s actions are interfering with the educational objectives of the university, or any other objectives in the Code, the university may discipline that student. 55 See id. (stating that defendants can request appellate review of convictions or sentences). 56 Id. 57 OR. REV. STAT. § 137.020(5) (2015). 58 OR. REV. STAT. § 138.050 (2015). 59 See, e.g., supra note 25. 60 UO STUDENT CONDUCT CODE, supra note 22, at § I(1). 61 Id. § I(2). 62 Id. § I(3). IANNUCCI (DO NOT DELETE) 4/25/2017 3:27 PM 2017] “Due” the Process: The Sufficiency of Due Process Protections 619 Afforded by University Procedures in Handling Sexual Assault Allegations 2. Sexual Misconduct Under Oregon’s Student Conduct Code, sexual misconduct is categorized as a violation of the “Standards Relative to the Rights of Individuals and to the Welfare of the University Community.”63 Sexual misconduct includes “[u]nwanted [p]enetration . . . [n]onconsensual personal contact . . . [and] [s]exual advances.”64 The Code also states that a lack of consent is necessary to facilitate a violation of sexual misconduct, whether the victim has either not explicitly consented to the action or lacks the capacity to consent.65 3. Rights of the Accused and the Accuser The Code provides substantial protections to the accused student, as well as the accuser. Accused students must be provided with notice of the complaint and notice of their rights under the Code.66 Extensive procedural protections are provided to the accused students, including the right to be informed of the contents and basis of the complaint. The accused also has the right to schedule an administrative conference with the Director of Community Standards, where the accused may present a “relevant response” to the allegations contained in the complaint.67 Both the accused and accuser shall be allowed a reasonable amount of time to prepare for the administrative conference, which allows for the proposal of relevant witnesses.68 Each party is also allowed to have an advisor present at the administrative conference.69 The advisor can include an attorney, member of the faculty, or another student.70 These procedural protections seek to maintain parity between the accused and the accuser. The Family Educational Rights and Privacy Act, as well as Oregon law protect the confidentiality of parties involved in complaints, administrative conferences, disciplinary actions, and any other process governed by the Code.71 63 Id. § V(3)(h). 64 Id. § II(29). 65 Id. 66 Id. § 2(5). 67 Id. 68 Id.§ 2(5)–(6). 69 Id. 70 Id. § 3(II)(2). 71 See id. § 2(4)(f). For more information on FERPA, see FERPA Frequently Asked Questions, http://familypolicy.ed.gov/faq-page?src=ferpa (last visited Mar. 14, 2017). IANNUCCI (DO NOT DELETE) 4/25/2017 3:27 PM 620 OREGON LAW REVIEW [Vol. 95, 609 a. Preponderance of the Evidence Unlike the high standard of beyond a reasonable doubt in the criminal setting, in a university setting, the finding of a violation of the student conduct code may be supported by a lesser burden of proof, such as a “preponderance of the evidence.”72 Preponderance of the evidence means that the claim is “more probably true than not true.”73 This is a lesser evidentiary standard than clear and convincing, which ascertains that the truth of the claim is “highly probable.”74 The University of Montana, for example, used the “clear and convincing” standard prior to the publication of the “Dear Colleague” letter by the Office of Civil Rights, which suggested that the lower evidentiary standard of “preponderance of the evidence” be used in sexual assault cases.75 The Office of Civil Rights supported its position for the lower evidentiary standard by noting that cases involving Title VII violations also used the “preponderance of the evidence” standard.76 Moreover, the Office of Civil rights uses that standard when it reviews allegations of discrimination, including Title IX violations.77 b. Student Conduct and Community Standards Process At the University of Oregon, the student conduct violation process initiates when a written complaint alleging a violation of the Code is provided to the Office of Community Standards.78 The Director of Student Conduct and Community Standards must provide written notice to the accused student within sixty days of receiving the complaint.79 The written notice provided to the accused student will include information about the alleged Code violation and the student’s rights under the Code.80 One of those rights includes the right to schedule an administrative conference with the Director of 72 See Letter from Russlyn Ali, Assistant Sec’y for Civil Rights, U.S. Dep’t of Educ., to colleague (Apr. 4, 2011), http://www2.ed.gov/about/offices/list/ocr/letters/colleague-2011 04.pdf [hereinafter Dear Colleague Letter 2011]; see also UO STUDENT CONDUCT CODE, supra note 22 at § 2(5)(h). 73 MODEL JURY INSTRUCTIONS CIVIL r. 1.3 (9th Cir. 2007). 74 Id. 75 Dear Colleague Letter 2011, supra note 72; see U.S. CONST. amend. V; see also OR. CONST. art. I, § 11. 76 Id. at 10. 77 Id. at 11. 78 UO STUDENT CONDUCT CODE, supra note 60, at § 3(II)(1). 79 Id. § 3(II)(1)–(2). 80 Id. § 3(II)(2). IANNUCCI (DO NOT DELETE) 4/25/2017 3:27 PM 2017] “Due” the Process: The Sufficiency of Due Process Protections 621 Afforded by University Procedures in Handling Sexual Assault Allegations Student Conduct and Community Standards; however, the accused must request that conference within seven days of receiving notice of the complaint.81 If the accused student fails to request an administrative conference or does not attend a scheduled administrative conference, the Director of Student Conduct and Community Standards may proceed through the process without the accused.82 The accused student has a right to a fair hearing; thus, the student can request that the case be referred to an outside office upon showing that a “reasonable basis” exists to believe that the Office of Community Standards may be biased towards that student.83 During the administrative conference, the accused will have “[r]easonable access to the case file prior to and during the conference, except . . . [as] prohibited by law.”84 While the accused may not present witnesses and evidence, the accused will be allowed to respond to the information provided, as well as request the Director of Student Conduct and Community Standards to contact “relevant and necessary witnesses.”85 Administrative conferences concerning sexual misconduct should typically be complete within sixty days of receiving the complaint.86 c. Right to Appeal Both the accused and accuser may appeal the decision of the Director of Student Conduct and Community Standards within fourteen days of the decision.87 The appeal will be heard by the University Appeals Board, which is comprised of three faculty members and three student members.88 Instead of rehearing the case, the Appeals Board merely reviews the administrative conference “record” and other documents.89 The University Appeals Board decision may overrule its own decision with the “affirmative vote of a majority of the University Appeals Board members present.”90 At the 81 Id. § 3(II)(2). 82 Id. § 3(II)(3). 83 Id. § 3(III)(2)(c); see also id. § 2(5)(g). 84 Id. § 3(III)(2)(a). 85 Id. § 3(III)(2)(b). 86 Id. § 3(III)(5). 87 Id. § 3(IV)(1). 88 Id. § 3(V)(2). 89 Id. § 3(IV)(2). 90 Id. § 3(IV)(3). IANNUCCI (DO NOT DELETE) 4/25/2017 3:27 PM 622 OREGON LAW REVIEW [Vol. 95, 609 University of Oregon, the University Appeals Board is considered the “final appeals body within the Student Conduct Program.”91 At the University of Montana, several layers of appeal exist for parties involved in sexual misconduct allegations.92 In the case of Jordan Johnson, who was found in violation of the Student Conduct Code, the decision that rendered him expelled was reviewed numerous times at various levels.93 Initially, Johnson appealed the decision of the Conduct Board to the Dean of Students.94 After the Dean of Students upheld the decision, Johnson then appealed to the Board of Regents and the Commissioner of Higher Education, who remanded the case back to the University of Montana.95 The University of Montana then hired an independent consultant who found Johnson had violated the Student Conduct Code.96 Despite the finding of a violation, the Dean of Students then unilaterally rejected the consultant’s decision, reinstating Johnson.97 It may be true that, despite the existence of such an appeal, the appeal does not comport with due process. While there may be some validity to that argument, the real focus must be on the fact that the goals and governing laws, including the evidentiary standards, are not necessarily the same between the criminal justice system and the higher education system. Thus, due process, while still relevant, may not have the same significance or meaning in the context of higher education disciplinary proceedings. II LIABILITY CAUSED BY THE COEXISTENCE OF THE CRIMINAL JUSTICE SYSTEM AND HIGHER EDUCATION A university investigating allegations of sexual misconduct asserted against one of its students must be conscious of the rights of both the victim and the accused. Both parties’ rights are vulnerable to infringement. The investigation, and any subsequent disciplinary actions, are part of a student’s educational record, which is 91 Id. § 3(IV). 92 See UNIV. OF MONT., DISCRIMINATION GRIEVANCE PROCEDURES (Sept. 23, 2013), http://www.umt.edu/eo/documents/discriminationprocedures.docx. 93 See KRAKAUER, supra note 3, at 186–87. 94 Id. 95 Id. at 186. 96 Id. 97 Id. at 187. IANNUCCI (DO NOT DELETE) 4/25/2017 3:27 PM 2017] “Due” the Process: The Sufficiency of Due Process Protections 623 Afforded by University Procedures in Handling Sexual Assault Allegations confidential under the Family Educational Rights and Privacy Act.98 Concurrent investigations by outside law enforcement may not necessarily be subject to the same restrictions.99 A. Potential Infringement on the Rights of the Victim Lawsuits involving victims of campus-related sexual assaults may assert several claims against a university stemming from state and federal law.100 For example, the victim of the alleged sexual assault involving three University of Oregon basketball players filed a civil suit against the University of Oregon for its mishandling of the case— namely its improper handling of the victim’s counseling files—which were obtained by the University’s counsel prior to being released in discovery by the victim’s attorneys.101 According to the complaint, counsel for the University of Oregon had obtained the victim’s confidential counseling records without her permission.102 That lawsuit, filed in January 2015, lasted nearly eight months, with the victim settling the lawsuit out of court in August 2015.103 B. Potential Infringement on the Rights of the Accused Universities are also vulnerable to potential lawsuits filed by the accused.104 For example, in October 2015, one of the alleged perpetrators in the aforementioned University of Oregon sexual assault case, Brandon Austin, filed a civil suit in state court against 98 The Family Educational Rights and Privacy Act (FERPA), 20 U.S.C. § 1232g(b) (2012). But see, 34 C.F.R. § 99.31 (2016) (listing limited circumstances in which an educational institution may release a student’s educational record without that student’s prior consent). 99 See generally UO STUDENT CONDUCT CODE, supra note 22, at § 1(IV)(7) (indicating that “[s]tudents may be accountable both to civil and criminal authorities and to the University for behavior that constitutes violations of the law and the Student Conduct Code”). 100 See, e.g., Complaint at 4–5, 20–24, Kollaritsch v. Mich. State Univ. Bd. of Tr. (W.D. Mich. Nov. 18, 2015) (No. 1:15-cv-01191) (involving sexual assault allegations that allegedly occurred on campus, including one such instance at a Michigan State University football game). 101 Jane Doe Complaint, supra note 28, at 9–10. 102 Id. at 10. 103 Gosia Wozniacka, University of Oregon Settles Lawsuit with Alleged Gang Rape Victim, ASSOCIATED PRESS (Aug. 4, 2015), http://www.huffingtonpost.com/entry/univer sity-of-oregon-settles-lawsuit-with-alleged-gang-rape-victim_55c1349ee4b0f7f0bebadc97. 104 See Austin Complaint, supra note 28. IANNUCCI (DO NOT DELETE) 4/25/2017 3:27 PM 624 OREGON LAW REVIEW [Vol. 95, 609 the University of Oregon.105 Among other things, Austin alleged that the University caused him to lose future income that he would have made had he remained a player for a Division I school, such as the University of Oregon.106 The basis of this lawsuit was that Austin’s due process rights were violated by the University.107 Austin alleged that the severity of the punishment from the University “required the defendants to provide Mr. Austin with the right to representation by counsel, testimony of witnesses under oath, depositions, issuance of subpoenas, and cross-examination of witnesses, and other due process protections.”108 The sentiment that accused students are denied due process when found responsible in university proceedings is becoming more common.109 A law firm in Eugene, Oregon, claims to “have pioneered” defense strategies for students who have been accused “false[ly] [of] university sexual assault accusations in Oregon.”110 The firm goes on to claim that “[t]he process is now broken and is discriminatory against men in violation of Title IX. Due Process is denied and students without the means to appeal unjust expulsions are forced to leave the University.”111 Further, a former Eugene city council member filed a Title IX complaint against the University of Oregon in regards to the three basketball players who were expelled after being accused of sexual assault.112 The Title IX complaint alleged that the University of Oregon, including the Athletic Department, engaged in behavior that was discriminatory against males.113 Most significantly, the complaint included an assertion that 105 Id. 106 See id. at 12–18. 107 Id. at 7–14. 108 Austin Complaint, supra note 28, at 8–9. 109 See, e.g., Eugene, Oregon Sex Crimes Attorneys, Sexual Abuse Lawyers, ARNOLD LAW, http://arnoldlawfirm.com/eugene-oregon-sex-crimes-attorneys/ (last visited Mar. 11, 2017). Michael Arnold, a self-proclaimed sex-crime defense attorney, believes that “[t]he pendulum has swung from ignoring sex crime victims to believing everything they say (i.e., University of Oregon Student Conduct ‘Hearings’).” Id. 110 Student Conduct Code Attorney—University of Oregon and Oregon State, ARNOLD LAW, http://arnoldlawfirm.com/student-conduct-hearing-lawyer/ (last visited Mar. 11, 2017). 111 Id. 112 Diane Dietz, Rights Complaint Filed on Behalf of Ducks Players, THE REGISTER- GUARD, (May 14, 2014), http://www.statesmanjournal.com/story/sports/college/univ -oregon/2014/05/14/uo-basketball-players-complaint-filed/9077533/. 113 See Kevin Hornbuckle, Complaint of Civil Rights Violation, FACEBOOK (May 13, 2014), https://www.facebook.com/kevin.hornbuckle/posts/10202199207561959 (featuring an alleged copy of the complaint). IANNUCCI (DO NOT DELETE) 4/25/2017 3:27 PM 2017] “Due” the Process: The Sufficiency of Due Process Protections 625 Afforded by University Procedures in Handling Sexual Assault Allegations males accused of sexual assault at the University of Oregon were presumed to be guilty, rather than innocent.114 While the outcome of this complaint is unknown, the concerns raised in the complaint appear to be a growing sentiment. At many schools, student conduct hearings only require the presence of the accused.115 Some of those hearings allow counsel to be present.116 However, the question remains as to whether accused have the right to counsel. If the proceedings are considered administrative in nature, not criminal,117 then the right to an attorney likely does not apply. Even if an accused can afford to hire counsel, the counsel may be precluded from participating in the hearing or have a limited role in the hearing.118 For example, at the University of Oregon, a student is allowed to have one “advisor” present at the hearing.119 Advisors may include other students who are not involved in the case, a parent or other family member, or a member of the faculty or administration.120 That advisor may also be an attorney, including an attorney from the Office of Student Advocacy; however, despite the advisor’s ability to participate in the hearing, the advisor is in no way meant to be a representative of the accused student.121 Moreover, the advisor may not cross-examine witnesses or fulfill any other role traditionally held by an attorney.122 With the prevalence of sexual assault and sexual assault allegations on college campuses, the line between college administrative hearings and criminal prosecution is becoming less apparent; however, now more than ever, it is important for the line to remain solid. The protections given to criminal defendants, including due process protections, do not necessarily extend to the accused in a student conduct hearing. Moreover, the extent to which those protections 114 Id. 115 See e.g., UO STUDENT CONDUCT CODE, supra note 22, at § 3(III)(2). 116 See id., at § 2(II)(2)(C). 117 See U.S. CONST. amend. VI (indicating that an accused has a right to counsel in a criminal proceeding). 118 UNIV. OF OR., STUDENT CONDUCT STANDARD OPERATING PROCEDURES REGARDING SEXUAL MISCONDUCT, SEXUAL HARASSMENT, AND UNWANTED SEXUAL CONTACT § 10 (last updated Oct. 13, 2016), https://dos.uoregon.edu/sexual-misconduct [hereinafter UO STUDENT CONDUCT PROCEDURES]. 119 Id. at § 15. 120 See UNIV. OF OR., OFFICE OF STUDENT CONDUCT AND CMTY. STANDARDS, Do I Need an Advisor?, https://dos.uoregon.edu/files/Advisors.pdf (last visited Mar. 11, 2017). 121 UO STUDENT CONDUCT PROCEDURES, supra note 118, at § 15. 122 Id. IANNUCCI (DO NOT DELETE) 4/25/2017 3:27 PM 626 OREGON LAW REVIEW [Vol. 95, 609 extend to the accused is still largely up for debate. Further, universities must balance the rights of the accused with the rights of the accuser. C. Constitutional Claims in Practice In 1975, the U.S. Supreme Court held that “when a school charges a student with a disciplinary violation, it must provide ‘notice and an opportunity for hearing appropriate to the nature of the case.’”123 However, the Court limited its holding to student suspensions of less than ten days.124 More recently, a federal trial court in the Eastern District of Pennsylvania held that a student’s expulsion deprived that student of his due process rights.125 In Furey, a student at Temple University was accused of assaulting an off-duty police officer,126 which led to the student being charged with a violation of the student conduct code.127 After participating in the processes dictated by the student conduct code, the student was expelled from Temple University.128 That student filed a complaint in federal court against Temple University in which the student alleged various due process violations.129 The court ultimately held that the student was provided adequate notice of the alleged violations against him; however, the court held that the school violated the student’s due process rights by not providing an unbiased conduct hearing.130 The court further noted that the student’s due process rights did not necessarily guarantee the student be provided with counsel.131 Most importantly, however, the court noted that, as in prior cases, the accused student’s due process rights were premised on the notion that the student had a property interest in his education at the university.132 Thus, permanent deprivation of the student’s education by expulsion without proper procedure would violate due process.133 123 Goss v. Lopez, 419 U.S. 565, 579 (1975). 124 Id. at 584. 125 Furey v. Temple, 884 F. Supp. 2d 223, 261 (E.D. Pa. 2012). 126 Id. at 230–31. 127 Id. at 240. 128 Id. 129 Id. at 226. 130 Id. at 259. 131 Id. at 253. 132 Id. at 246. 133 Id. IANNUCCI (DO NOT DELETE) 4/25/2017 3:27 PM 2017] “Due” the Process: The Sufficiency of Due Process Protections 627 Afforded by University Procedures in Handling Sexual Assault Allegations A few federal circuit courts have indicated that students may be entitled to legal counsel at disciplinary hearings; however, those circuit courts confronted cases involving students who were also facing criminal charges stemming from the behavior that had violated the student conduct code.134 Some courts limit the right to counsel only to a right to consult or obtain advice from counsel.135 Other courts have noted that if counsel actively participates in the disciplinary hearing, then perhaps other parties involved in the hearing would be required to have the training and expertise of an attorney.136 Ultimately, case law supports the notion that some sort of procedural due process must be given to students who are participating in student conduct hearings for student conduct code violations. The extent of the due process rights is directly related to the potential severity of the punishment. Further, if a university follows its own process as laid out in its conduct code, the university could likely comport with due process requirements. III RECENT DEVELOPMENTS IN HIGHER EDUCATION AND AT THE UNIVERSITY OF OREGON Although Title IX and other federal laws have mandated that universities provide safe educational environments free from discrimination caused by sexual assault, these universities often find difficulty in abiding by such standards. As of March 9, 2016, 173 postsecondary institutions are being investigated by the United States Department of Education, Office of Civil Rights (OCR) for Title IX violations.137 The OCR initiates those investigations either due to complaints that it has received or in order to review an institution’s 134 See, e.g., Osteen v. Henley,13 F.3d 221, 225 (7th Cir. 1993); Gabrilowitz v. Newman, 582 F.2d 100, 103 (1st Cir. 1978). 135 See, e.g., Newsome v. Batavia Local Sch. Dist., 842 F.2d 920, 925–26 (6th Cir. 1988); Gorman v. Univ. of R.I., 837 F.2d 7, 16 (1st Cir. 1988). 136 See Furey v. Temple Univ., 884 F. Supp. 2d 223, 253 (E.D. Pa. 2012) (finding that an accused student may be afforded the right to counsel in a disciplinary proceeding but not the right for counsel to actively participate in the hearing). 137 Press Release, Office of Civil Rights, List of Sexual Violence Investigations Open at the Postsecondary Level Including the Dates the Specific Investigations Were Initiated (Mar. 9, 2016) (on file with author). IANNUCCI (DO NOT DELETE) 4/25/2017 3:27 PM 628 OREGON LAW REVIEW [Vol. 95, 609 compliance with Title IX.138 Upon conclusion of an investigation, OCR will either enter into a resolution agreement with the investigated institution to resolve compliance concerns or determine that insufficient evidence existed to establish a Title IX violation occurred.139 OCR periodically releases publications meant to provide further guidance for universities that are struggling to maintain compliance with the various federal regulations.140 Some of those publications include the “Dear Colleague” letters. Two significant “Dear Colleague” letters have been disseminated over the past five years. Each of these letters provided specific guidance for universities to remain in compliance with Title IX. A. “Dear Colleague” Letters On April 4, 2011, OCR issued a “Dear Colleague” letter (2011 letter) addressing sexual harassment in school districts, colleges, and universities (recipients) that receive Title IX funding.141 Recipients were issued the 2011 letter as a reminder of the recipients’ responsibilities under Title IX to provide a safe educational environment, free from harassment, for all students.142 Citing to a 2001 OCR publication, OCR explained that harassment in the educational context may create “a hostile environment . . . sufficiently serious that it interferes with or limits a student’s ability to participate in or benefit from the school’s program.”143 While a pattern of harassment likely creates a hostile environment, isolated incidences do not necessarily constitute “sufficiently serious” interference; however, “a single instance of rape is sufficiently severe to create a hostile environment.”144 The 2011 Dear Colleague letter outlined the recipients’ obligations under Title IX, including an obligation to respond to conduct involving students, both on and off school 138 Press Release, United States Dep’t of Educ., U.S. Department of Education Releases List of Higher Education Institutions with Open Title IX Sexual Violence Investigations (May 1, 2014), http://www.ed.gov/news/press-releases/us-department-education-releases -list-higher-education-institutions-open-title-i. 139 Press Release, Office of Civil Rights, supra note 137. 140 Reading Room Frequently Asked Questions, OFFICE FOR CIVIL RIGHTS, U.S. DEP’T OF EDUC., https://www2.ed.gov/about/offices/list/ocr/frontpage/faq/rr/policyguidance/sex .html (last visited Mar. 15, 2017). 141 See Dear Colleague Letter 2011, supra note 72. 142 Id. at 1. 143 Id. at 3. 144 Id. (citing Jennings v. Univ. of N.C., 444 F.3d 255, 268, 274 n.12 (4th Cir. 2006)). IANNUCCI (DO NOT DELETE) 4/25/2017 3:27 PM 2017] “Due” the Process: The Sufficiency of Due Process Protections 629 Afforded by University Procedures in Handling Sexual Assault Allegations grounds, if one of the students involved files a complaint with the school.145 Recipients were also provided with procedural requirements involving the handling sexual harassment complaints.146 These procedural requirements included the “[d]isseminat[ion] [of] a notice of nondiscrimination, [d]esignat[ion] [of] at least one employee to coordinate its efforts to comply with and carry out its responsibilities under Title IX, and [a]dopt[ion] and publication [of] grievance procedures providing for prompt and equitable resolution of student and employee sex discrimination complaints.”147 According to the 2011 letter, a recipient’s notice of nondiscrimination does not need to include a policy that specifically prohibits sexual harassment or sexual violence; however, a recipient’s policy must be specific enough so as to provide notice to students of conduct that could constitute sexual harassment (and sexual violence).148 Each recipient’s designated employee, or coordinator, is required to supervise and facilitate compliance with Title IX, which includes incorporating the coordinator’s information into that recipient’s notice of nondiscrimination.149 The coordinator must also ensure that the recipient’s grievance procedures are in compliance with Title IX.150 In order to comply with Title IX, a university must give notice of grievance procedures to students, parents, and employees.151 Those grievance procedures must also provide an “[a]dequate, reliable, and impartial investigation of complaints” which will allow for parties involved to bring forth witnesses and other evidence.152 The 2011 letter notes that the use of police investigations could aide in gathering information about the occurrence, but that criminal investigations and reports are “not determinative of whether sexual harassment or violence violates Title IX.”153 This is, in part, because of the different standards used in criminal investigations as opposed to investigations of sexual harassment in an educational context.154 145 Id. at 4. 146 Id. at 6. 147 Id. (citing 34 C.F.R. § 106 (2016)). 148 Id. at 7. 149 Id. 150 Id. at 8. 151 Id. at 9. 152 Id. 153 Id. at 10. 154 Id. IANNUCCI (DO NOT DELETE) 4/25/2017 3:27 PM 630 OREGON LAW REVIEW [Vol. 95, 609 These investigations can occur simultaneously, and recipients do not need to wait until the conclusion of a criminal investigation in order to investigate the sexual harassment allegations.155 The 2011 letter repeatedly notes that the parties involved have “equal opportunity” to present witnesses and evidence;156 however, that right does not necessarily include the right to cross-examine each other’s witnesses.157 On April 24, 2015, OCR released another “Dear Colleague” letter (2015 letter) pertaining to Title IX compliance.158 In particular, the 2015 letter outlined specific considerations that Title IX funding recipients should consider when designating a Title IX coordinator.159 The most significant of these considerations is that the Title IX coordinator be independent so as to prevent conflicts of interest.160 The 2015 letter provided examples of potential conflicts of interest, such as when the Title IX coordinator is also a “disciplinary board member, general counsel, dean of students . . . or athletics director.”161 While not required, the 2015 letter suggested that the designating multiple Title IX coordinators could provide both students and staff with a “familiarity” with that coordinator which could “result in more effective training of the school community on their rights and obligations under Title IX . . . .”162 Aside from the recommendations pertaining to the selection of a Title IX coordinator, the 2015 letter also contained recommendations and clarifications of the Title IX coordinator’s position and responsibilities, specifically referencing the coordinator’s role in the handling of sexual harassment allegations.163 The Title IX coordinator must facilitate the institution’s response to any and all complaints involving allegations of sex discrimination.164 More importantly, the coordinator must actively track the outcomes of such complaints, recognize patterns in those outcomes, and determine the 155 Id. at 10. 156 Id. at 9, 11–12. 157 Id. at 12. 158 Letter from Catherine E. Lhamon, Assistant Sec’y for Civil Rights, U.S. Dep’t of Educ. to colleague (Apr. 24, 2015), http://www2.ed.gov/about/offices/list/ocr/letters /colleague-201504-title-ix-coordinators.pdf. 159 Id. 160 Id. at 2–3. 161 Id. at 3. 162 Id. 163 Id. at 3–4. 164 Id. IANNUCCI (DO NOT DELETE) 4/25/2017 3:27 PM 2017] “Due” the Process: The Sufficiency of Due Process Protections 631 Afforded by University Procedures in Handling Sexual Assault Allegations impact of those outcomes on the greater campus community.165 According to the 2015 letter, the coordinator’s monitoring and identification of potential patterns of sex discrimination “can help the recipient avoid Title IX violations . . . involving sexual harassment and violence, by preventing incidents from recurring or becoming systemic problems that affect the wider school community.”166 Although the coordinator is working behind the scenes, she should be visible and accessible to the greater campus community.167 For example, at the University of Oregon, a notice of nondiscrimination and the Title IX coordinator’s contact information is posted on the bottom of every single webpage linked to the main university website.168 B. Legislation A number of acts have been introduced in congress relating to sexual assaults on campus.169 The Campus Sexual Violence Elimination Act (Campus SaVE Act) amended the Clery Act through the Violence Against Women Reauthorization Act (VAWA).170 The VAWA expanded the offenses that needed to be reported under the Clery Act to include domestic violence, dating violence, and stalking.171 Moreover, VAWA extended institutions’ policies to include information about a victim’s choice to contact authorities, both on-campus and off-campus law enforcement, as well as a victim’s rights in regards to judicially administered protective or restraining orders.172 Perhaps most significantly, the VAWA 165 Id. 166 Id. 167 Id. at 4. 168 See UNIV. OF OR., http://uoregon.edu (last visited Mar. 11, 2017). 169 See, e.g., Violence Against Women Reauthorization Act of 2013 (VAWA), Pub. L. No. 113-4, § 304(a)(1)(B)(iii), 127 Stat. 54, 89 (codified as amended at 20 U.S.C. § 1092(f)(1)(F)(iii)); Safe Campus Act of 2015, H.R. 3403, 114th Cong. (2015); Fair Campus Act of 2015, H.R. 3408, 114th Cong. (2015); Campus Accountability and Safety Act, S.590, 114th Cong. (2015); Hold Accountable and Lend Transparency on (“HALT”) Campus Sexual Violence Act, H.R. 2680, 114th Cong. (2015). 170 Pub. L. No. 113-4, § 304(a)(1)(B)(iii), 127 Stat. 54, 89 (codified as amended at 20 U.S.C. § 1092(f)(1)(F)(iii)). 171 20 U.S.C. § 1092(f)(F)(iii) (2015). 172 See AM. COUNCIL ON EDUC., NEW REQUIREMENTS IMPOSED BY THE VIOLENCE AGAINST WOMEN REAUTHORIZATION ACT (Apr. 1, 2014), http://www.acenet.edu/news -room/Documents/VAWA-Summary.pdf. IANNUCCI (DO NOT DELETE) 4/25/2017 3:27 PM 632 OREGON LAW REVIEW [Vol. 95, 609 mandated training programs that were previously recommended in the 2015 letter, including programs involving the definition of consent.173 The Safe Campus Act of 2015174 and the Fair Campus Act of 2015175 both seek to eliminate the power of institutions of higher education to investigate and discipline students accused of sexual misconduct, instead placing the investigatory power almost solely on law enforcement. In particular, the Safe Campus Act of 2015 seeks to require institutions of higher education to “report and refer the allegation to the law enforcement agency of the unit of local government . . . not later than 48 hours after receiving written consent from the alleged victim.”176 Upon initiating an investigation into the allegations, institutions of higher education would then be precluded from “initat[ing] or otherwise carry[ing] out any institutional disciplinary proceeding with respect to the allegation, except to the extent that the institution may impose interim sanctions . . . .”177 These interim sanctions include temporary suspensions178 of “not more than 15 days” which could be extended up to 30 days if the institution of higher education determines that the accused student “poses an immediate threat to campus safety and student well- being.”179 The Safe Campus Act of 2015 also seeks to extend the so-called “due process requirements for institutional disciplinary proceedings” to essentially mirror rights provided by the Fifth and Fourteenth Amendments to a defendant in a criminal proceeding.180 Specifically, the Safe Campus Act of 2015 seeks to allow a right to inculpatory and exculpatory evidence, which the Act deems as “material evidence.”181 Even more significant, the Act seeks to provide a right to representation by an attorney who could participate in the formal hearing,182 as well as a right for the involved parties to cross-examine each other’s witnesses.183 173 Id. at 3. 174 Safe Campus Act of 2015, H.R. 3403, 114th Cong. (2015). 175 Fair Campus Act of 2015, H.R. 3408, 114th Cong. (2015). 176 H.R. 3403 § 163(a)(1). 177 Id. § 163(b)(1). 178 Id. § 163(c)(1). 179 Id. § 163(c)(2)(a). 180 See id. § 164. 181 Id. § 164(a)(3). 182 Id. § 164(a)(4). 183 Id. § 164(a)(5). IANNUCCI (DO NOT DELETE) 4/25/2017 3:27 PM 2017] “Due” the Process: The Sufficiency of Due Process Protections 633 Afforded by University Procedures in Handling Sexual Assault Allegations The Fair Campus Act of 2015 is nearly identical to the Safe Campus Act of 2015; however, a key difference is that the Fair Campus Act of 2015 does not include the requirement that institutions of higher education turn over sexual assault allegations to local law enforcement.184 From the date of their introductions on July 29, 2015, the Safe Campus Act of 2015 and Fair Campus Act of 2015 garnered public support from both the National Panhellenic Conference and North-American Interfraternity Conference, which are considered umbrella groups of sororities and fraternities nationally.185 However, in November 2015, both the National Panhellenic Conference and the North-American Interfraternity Conference withdrew their support of the Safe Campus Act of 2015.186 The HALT Campus Sexual Violence Act seeks to publish a list of institutions that have been investigated or are currently being investigated by the Department of Education.187 More specifically, the HALT Campus Sexual Violence Act seeks to list institutions under investigation by the Department, sanctions and findings issued by the Department, and any agreements entered into by those institutions related to the sanctions or findings.188 The Act also seeks to create a private right of action for “aggrieved individuals.”189 As additional punishment for institutions found in violation of the Clery Act, the HALT Campus Sexual Violence Act also seeks to increase the financial penalty from $25,000 to $100,000.190 Perhaps most importantly, the Act seeks to establish a “Campus Sexual Violence Task Force” that would, among other things, provide and develop recommendations to institutions of higher education regarding the response to and prevention of sexual assaults, survivor resources, and 184 See Fair Campus Act of 2015, H.R. 3408, 114th Cong. (2015). 185 Tyler Bishop, The Laws Targeting Campus Rape Culture: A New Federal Policy Seeks to Tackle the College Sexual-Assault Problem—But Can It Change the Status Quo?, THE ATLANTIC (Sept. 11, 2015), http://www.theatlantic.com/education/archive/2015/09 /the-laws-targeting-campus-rape-culture/404824/. 186 Tyler Bishop, Forcing Colleges to Involve Police in Sexual-Assault Investigations? Greek Life is Backtracking on a Bill That Would Limit Schools’ Ability to Adjudicate Cases, THE ATLANTIC (Nov. 19, 2015), http://www.theatlantic.com/education/archive /2015/11/forcing-colleges-to-involve-police-in-sexual-assault-investigations/416736/. 187 HALT Sexual Violence Act, H.R. 2680, § 2(a)(1), 114th Cong. (2015). 188 Id. § 2(a)(1). 189 Id. § 5. 190 Id. § 6. IANNUCCI (DO NOT DELETE) 4/25/2017 3:27 PM 634 OREGON LAW REVIEW [Vol. 95, 609 establish best practices for the response and prevention of sexual assaults.191 The current Clery Act requires that universities must provide an annual report of certain reported crimes, including sexual assault, that have occurred on campus.192 Under the Clery Act, universities must also provide a timely warning of an incident, including a reported sexual assault, to the greater campus community.193 Moreover, the Act also requires that universities provide information about options and support to survivors of sexual violence, including sexual assault.194 Further, universities must have a structure in place to allow an expedient handling of an allegation of sexual violence if that act occurred on campus.195 IV RECENT POLICY CHANGES AT THE UNIVERSITY OF OREGON The University of Oregon, despite not being under investigation for Title IX violations, saw the need to update its policies on the handling of sexual assault investigations. The university was likely motivated in part by the dissolving of the Oregon University System, which forced the universities in Oregon to self-regulate.196 Moreover, in autumn of 2014, a University of Oregon professor facilitated a study of sexual assault at the University of Oregon, which produced disturbing findings.197 A. Twenty Students Per Week: The Final Report of the University Senate Task Force to Address Sexual Violence and Survivor Support In May 2014, the University of Oregon Senate commissioned a task force known as the Senate Task Force to Address Sexual Violence and Support (Senate Task Force). The Senate Task Force sought to study the “strengths and limitations of the university’s 191 Id. § 8(a). 192 Violence Against Women Act, 34 C.F.R. § 668.46(b)(4) (2016). 193 Id. § 668.46(e). 194 34 C.F.R. § 668.46(b)(11)(iv). 195 34 C.F.R. § 668.46(k)(1)(i). 196 See Dash Paulson, The End of the Oregon University System, EUGENE WKLY. (July 9, 2015), http://www.eugeneweekly.com/20150709/news-briefs/end-oregon-univer sity- system. 197 UO Sexual Violence Survey, supra note 27; UO Survey Assessment, supra note 27 (finding that ninety percent of students who reported having a nonconsensual sexual experience did not tell any university source). IANNUCCI (DO NOT DELETE) 4/25/2017 3:27 PM 2017] “Due” the Process: The Sufficiency of Due Process Protections 635 Afforded by University Procedures in Handling Sexual Assault Allegations response to recent incidents of sexual violence, and based on those assessments, to initiate sustained, proactive changes aimed at ending sexual violence and supporting survivors of sexual violence.”198 In November 2014, the Senate Task Force released its final report, which outlined recommendations including critical policy changes, prevention and education, and administrative changes.199 Also included in the final report were initial recommendations for immediate action made to then-interim university president, Scott Coltrane.200 1. Critical Policy Changes One significant policy change suggested in the report included the simplification and accessibility of the disciplinary process because the process as it stood was confusing and difficult to navigate.201 The Senate Task Force also recommended that the university conduct a campus climate survey to better determine the prevalence of sexual assault on the University of Oregon campus.202 In addition, the Senate Task Force recommended asking the President and the Board to require cooperation and participation from the athletic department senior leadership in addressing sexual violence issues. Another recommendation included the encouragement of the President and the Board to mandate that senior leadership within the athletic department actively cooperate and participate in addressing sexual violence issues.203 Between May and November 2014, the Senate Task Force worked with fraternities and sororities at the University of Oregon to address sexual assault within the Greek system.204 Ultimately, the Senate Task Force recommended that the university develop a separate task force specific to the Greek system.205 Moreover, the Senate Task 198 UNIV. OF OR. SENATE TASK FORCE, TWENTY STUDENTS PER WEEK: THE REPORT OF THE UNIVERSITY SENATE TASK FORCE TO ADDRESS SEXUAL VIOLENCE AND SURVIVOR SUPPORT (Nov. 5, 2014), http://senate.uoregon.edu/sites/senate.uoregon.edu /files/2014_11_06%20Senate%20Task%20Force%20Report%20FINAL.pdf (internal quotation omitted). 199 Id. at 1. 200 Id. at 26–28 app. A. 201 Id. at 6. 202 Id. at 10–12. 203 Id. at 12. 204 Id. at 13. 205 Id. at 15–16. IANNUCCI (DO NOT DELETE) 4/25/2017 3:27 PM 636 OREGON LAW REVIEW [Vol. 95, 609 Force recommended that the Greek system be precluded from expanding at the university until sexual assault within the Greek system had been “identified, studied and addressed.”206 2. Prevention and Education In order to effectively educate students at the university, the Senate Task Force recommended that students be required to view multiple sessions of presentations by the Sexual Wellness Advocacy Team (SWAT), including sessions that would be focused toward particular audiences, such as fraternity and sorority members and college athletes.207 The Senate Task Force also recommended the expansion of “empowerment-based women’s self-defense training.”208 Regarding Title IX, the Senate Task Force recommended implementing consistent training for all university employees, hiring one head Title IX coordinator, and hiring three assistant coordinators to assist the head coordinator.209 3. Administrative Changes Many of the suggested administrative changes involve mandatory reporting and the university’s grievance procedures.210 In particular, the Senate Task Force sought to review the university’s policy involving its employees and their requirements to report sexual violence, which the Senate Task Force believed was mistakenly interpreted to be mandatory rather than discretionary.211 Relatedly, the Senate Task Force sought to review and streamline the university’s grievance procedures, which many faculty, staff, and students identified as problematic and “difficult to understand.”212 Aside from review of formal policies, the Senate Task Force focused on establishing other support and collaboration within the Eugene community with groups such as Sexual Assault Support Services, Womenspace, and the Eugene Police Department.213 206 Id. at 13. 207 Id. at 17. 208 Id. at 18. 209 Id. at 19. 210 Id. at 20–21. 211 Id. at 20. 212 Id. at 21. 213 Id. at 23. IANNUCCI (DO NOT DELETE) 4/25/2017 3:27 PM 2017] “Due” the Process: The Sufficiency of Due Process Protections 637 Afforded by University Procedures in Handling Sexual Assault Allegations 4. Initial Recommendations for Immediate Action Prior to the publishing of the final report, the Senate Task Force made initial recommendations for immediate action to the then- interim president, Scott Coltrane, which the Senate Task Force believed needed to be implemented before the first day of undergraduate classes.214 Those initial recommendations included establishing an emergency fund for survivor support and prevention of sexual assault, a Good Samaritan policy, Title IX messaging, educational messaging, and anonymous reporting.215 The emergency fund, with a requested amount of $10,000, was meant to be a “discretionary fund . . . administered by the Sexual Violence Response & Support Services Coordinator.”216 The Good Samaritan policy was meant to prevent the hesitation that students may feel when, for example, students had been drinking underage at the time of the incident and thus feared the punishment involved with that act.217 The Title IX messaging sought to provide the university’s employees with a clear explanation of the university’s Title IX policies, including information on resources, officers and deputy officers, and responsibilities under Title IX.218 Similarly, the educational messaging suggested that each member of the faculty include the university’s Title IX policy in their syllabi, and that the university provide faculty with information and guidance about discussing sexual violence in the classroom.219 Finally, the Senate Task Force was concerned with the University of Oregon Police Department’s anonymous reporting website, which would track the IP address of anonymous reporters on that site, thus contradicting the anonymity of that method of reporting.220 In response to the Senate Task Force’s initial recommendations, then interim president Scott Coltrane released a statement on September 23, 2014, outlining his intention to proceed regarding each recommendation. Interim President Coltrane agreed with all of the initial recommendations and took action to proceed with each, including authorizing a discretionary fund for survivor support and 214 Id. at 26 app. A. 215 Id. 216 Id. 217 Id. at 27. 218 Id. 219 Id. 220 Id. IANNUCCI (DO NOT DELETE) 4/25/2017 3:27 PM 638 OREGON LAW REVIEW [Vol. 95, 609 prevention of sexual assault and directing the Division of Student Life to review the draft Good Samaritan policy.221 He also agreed to send an e-mail to university employees outlining the university’s Title IX resources, while directing the Title IX coordinator to review all communications on the matter.222 Interim President Coltrane also directed the Provost’s Office to review the draft language on the university’s Title IX policy to be included in each faculty member’s syllabus.223 Finally, Interim President Coltrane acknowledged that the University of Oregon Police Department’s anonymous reporting site does attach an anonymous reporter’s IP address; however, he directed the University of Oregon Police Department not to access those IP addresses.224 B. Transition For the past few years, the University of Oregon has experienced a variety of changes in leadership from the president to the general counsel, as well as the Title IX coordinator. The University of Oregon’s current president, Michael Schill, began his tenure in July 2015.225 Prior to President Schill’s appointment, Scott Coltrane served as interim president for almost a year. Interim President Coltrane’s service came after the sudden resignation of President Michael Gottfredson, who served as president of the university during the sexual assault incident involving the three University of Oregon basketball players.226 The Office of General Counsel, which provides legal counsel to the university, has seen more changes than the president. Attorneys currently listed as general counsel include Doug Park, Samantha Hill, Melissa Matella, Bryan Dearinger, and Craig Ashford. Park and Hill were investigated by the Oregon State Bar for potential wrongdoing after the bar received complaints that Park and Hill had illegally obtained a student’s counseling records without the 221 E-mail from Scott Coltrane, Interim President of the Univ. of Or., to Robert Kyr, President of the Senate Task Force, and Carol Stabile and Randy Sullivan, Senate Task Force Co-Chairs (Sept. 23, 2014), https://president.uoregon.edu/content/interim-president -act-upon-recommendations-university-senate-task-force. 222 Id. 223 Id. 224 Id. 225 NEW UO PRESIDENT SPENDS TIME ON CAMPUS MEETING AND GREETING, AROUND THE O, https://around.uoregon.edu/content/new-uo-president-spends-time-campus-meeting -and-greeting (last visited Mar. 11, 2017). 226 Newell, supra note 18; Greif, supra note 19. IANNUCCI (DO NOT DELETE) 4/25/2017 3:27 PM 2017] “Due” the Process: The Sufficiency of Due Process Protections 639 Afforded by University Procedures in Handling Sexual Assault Allegations student’s consent.227 Park and Hill were eventually cleared of wrongdoing in the matter.228 The interim Title IX coordinator at the University of Oregon was Penelope Daugherty;229 however, the university recently hired a replacement for Daugherty.230 C. President Schill: A New Direction President Michael Schill began his tenure at the University of Oregon on July 1, 2015.231 On August 4, 2015, President Schill announced his plan to prevent and respond to sexual assault at the University of Oregon.232 His plan included hiring a new Title IX coordinator, two deputy Title IX coordinators, and an Affirmative Action and Equal Opportunity investigator.233 President Schill also indicated his intention to continue to follow through with the plan created under Interim President Coltrane, under the recommendation of the Senate Task Force.234 Following his appointment, President Schill instituted the Sexual Assault Advisory Council consisting of faculty, staff, graduate and undergraduate students, as well as members of the community.235 The goal of this council, according to President Schill, is to “help guide 227 Richard Read, Six UO Employees, Including Vice President, Under Investigation for Alleged Misconduct Concerning Rape Case, OREGON LIVE (May 8, 2015), http://www .oregonlive.com/education/index.ssf/2015/05/six_uo_employees_including_a_v.html. 228 Letter from Troy J. Wood, Assistant Gen. Counsel, Or. State Bar, to Jennifer Morlok, University Counseling & Testing Center (June 18, 2015), http://media.oregon live.com/education_impact/other/OregonStateBarMorlok.pdf. 229 Heroy Named Permanent AVP and Title IX Coordinator, AROUND THE O, https://around.uoregon.edu/content/heroy-named-permanent-avp-and-title-ix-coordinator (last visited Mar. 11, 2017). 230 Camilla Mortenson, Dragged Through the Mud: Sexual Assault Survivors Endure, EUGENE WKLY. (May 28, 2015), http://www.eugeneweekly.com/20150528/lead-story /dragged-through-mud. 231 Biography: Michael Schill 18th President of the University of Oregon, UNIV. OF OR., THE OFFICE OF THE PRESIDENT, http://president.uoregon.edu/biography (last visited Mar. 15, 2017). 232 UNIV. OF OR., THE OFFICE OF THE PRESIDENT, SEXUAL ASSAULT PREVENTION AND RESPONSE AT THE UNIVERSITY OF OREGON, https://president.uoregon.edu/content /sexual-assault-prevention-and-response-university-oregon (last visited Mar. 11, 2017). 233 Id. 234 Id. 235 UNIV. OF OR., THE OFFICE OF THE PRESIDENT, SEXUAL ASSAULT ADVISORY COUNCIL, http://president.uoregon.edu/content/sexual-assault-advisory-council (last visited Mar. 11, 2017). IANNUCCI (DO NOT DELETE) 4/25/2017 3:27 PM 640 OREGON LAW REVIEW [Vol. 95, 609 and evaluate [the University’s] work to end sexual violence and foster a campus culture of safety, respect, and responsibility.”236 CONCLUSION Over the past year, the University of Oregon has taken great strides in combatting sexual assaults involving University of Oregon students, as well as updating the university’s procedure for handling sexual assaults. In particular, the university has acknowledged that the entire campus community must be educated about the university’s policies, procedures, and support systems in regards to sexual assault. Increased cooperation between the university and the Eugene Police Department, as well as a more straight-forward investigation process, will hopefully lessen the chance of mishandling sexual assault allegations. Further, the hiring of President Schill, who has openly supported the plan set forth by the Senate Task Force, is a step in the right direction for the university. Publicity from high-profile sexual assault cases, cultural acknowledgment that a sexual assault problem exists, and a continual overlap between the criminal justice system and the institution of higher education has culminated in a perfect storm of liability for the public institutions. Regardless of whether a sexual assault allegation is handled strictly by outside law enforcement or the university officials, universities find themselves exposed to liability from multiple angles. While this liability may never be completely eliminated, universities can limit liability by staying in compliance with Title IX and appropriately handling sexual assault allegations. The diverging goals and interests of the criminal justice system and institutions of higher education force these two institutions to remain separate from each other. Moreover, the laws and rules governing the criminal justice system and institutions of higher education vary; therefore, allegations of sexual assault should be handled separately by each system. 236 Id.