A Critical Look at How Top Colleges and Universities are Adjudicating Sexual Assault

Abstract

This Article examines the procedural protections afforded by the top American colleges and universities. After briefly situating these policies historically, it presents original research on the procedural protections provided by the top twenty universities, top ten liberal arts colleges, and top five historically black colleges as ranked by U.S. News and World Reports. In 2015, university administrators were contacted and asked a series of questions about the rights afforded to students, including the standard of proof, right to an adjudicatory hearing, right to confront and cross-examine witnesses, right to counsel, right to silence, and right to appeal. This Article describes the study’s findings and then compares them with prior studies. It then considers whether the disciplinary proceedings constitute state action, thus making them subject to constitutional scrutiny should they be challenged in court. This Article concludes by briefly considering whether a student could successfully challenge these proceedings under contract law or Title IX.

Keywords: Dear Colleague Letter, Procedural Protections, Due Process, State Action, Standing, Title IX, Contract