Privatization, State Action, and Title IX: Do Campus Sexual Assault Hearings Violate Due Process?

Abstract

Sexual assault hearings are taking place at colleges and universities all over the country under the mandate of a 2011 Department of Education Dear Colleague letter. The procedures followed are secretive, sometimes inquisitorial, and frequently in violation of fundamental due process principles. Courts, however, have ruled that Due Process does not apply to sexual assault hearings at private schools because private schools are not state actors. These rulings are clearly mistaken. The Due Process Clause applies in full to campus Title IX sexual assault investigations and adjudications conducted under the mandate of the Dear Colleague letter.

Keywords: Sexual assault, Title IX, Due Process