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  • Suspended Student Sues Penn State University Alleging New Sexual Misconduct Investigative Procedures Violate Due Process

    Last week, a federal judge in Pennsylvania granted injunctive relief to a student who was suspended from Penn State University (the “University”) for alleged sexual misconduct. Specifically, the judge issued an order temporarily restraining the University from enforcing disciplinary sanctions pending a court hearing on November 23, 2015. The student is a senior at the University and is originally from Syria. As a result of the University’s disciplinary proceeding and subsequent suspension, he faces revocation of his student visa and potential deportation.

    The sexual misconduct allegations involve the student and his fellow fraternity members engaging in oral sex and other sexual conduct with a female complainant who was allegedly too intoxicated to provide consent to the activity. The complainant’s sister, who was with her at the party where the alleged misconduct occurred, later reported the incident to the campus police. A Title IX investigator from the University investigated the allegations and the University’s Title IX panel ordered suspension of the student. According to court documents, the student is suing the University, its president Eric Barron and the Senior Director of the Office of Student Conduct, Danny Shaha, alleging that the University’s recently introduced Title IX disciplinary process, the “Investigative Model” (introduced in April 2015) violates his due process rights under the 14th Amendment.

    It is well settled that Title IX requires institutions to adopt and publish grievance procedures for students to file complaints of sexual harassment or sexual violence. However, Title IX allows institutions to create their own disciplinary procedures to address the complaints. In other words, under Title IX, the investigation into alleged misconduct may include a hearing to determine whether the conduct occurred, but Title IX does not necessarily require a hearing.

    Under the University’s new Title IX disciplinary process, one person investigates the allegations of misconduct and there is no hearing. Whenever a report of sexual misconduct is brought to the attention of the University and the complainant desires to move forward, the case is assigned to a special investigator. The investigator is responsible for compiling and collecting all of the evidence from the interviews and outside sources. The special investigator serves as a fact-finder and removes the need for the complainant and respondent to appear at a hearing. The investigator then compiles all of the information into an investigative packet, which is then sent to a decision-making panel. The panel is presented with the investigator’s findings and can ask him or her follow-up questions. The panel then decides whether there has been a policy violation and if necessary, determines the sanctions to be imposed.

    Previously, the University’s disciplinary process involving complaints of sexual misconduct required a hearing where witnesses testified before a disciplinary panel were subject to a form of cross-examination. Arguably, the hearing process provided a greater opportunity for the panel to assess the credibility of the witnesses and parties. However, the University’s new Title IX disciplinary process was introduced after the University’s sexual assault task force recommended the changes to “strike a balance between obtaining fair, accurate outcomes while avoiding the ‘undue stress and other harm too often caused by the current hearing model.’”

    The judge, in granting the temporary injunction, found that the student demonstrated a reasonable likelihood of success in proving that the University’s disciplinary process was inadequate and, therefore, violated his due process rights. “Doe filed this lawsuit to protect himself from deportation and so that he can finish his studies, not to make any sort of political statement,” said the student’s attorney, Andrew Shubin. Penn State spokeswoman Lisa Powers said the university is aware of the filing and is “confident that the investigative and disciplinary processes we follow are both fair and appropriate.”

    In addition to closely following the development of Title IX related issues and state laws that constantly evolve, institutions are advised to evaluate their disciplinary processes to make sure that students’ due process rights are preserved. Moreover, institutions should keep a close eye on the course of this case, as it has the ability to have practical as well as legal implications for all colleges and universities.

    If you have any questions or concerns regarding employment or education related issues, please contact James G. Ryan at jryan@cullenanddykman.com or at (516) 357 – 3750.

    Thank you to Garam Choe, a law clerk at Cullen and Dykman LLP, for his help with this post.