Code of conduct

What is the most moral system of action? One principle is utilitarianism: the end justifies the means. Utilitarianism introduces useful principles such as enumerating alternatives, ranking realistic choices, and sacrificing in the short term for the greater good in the long term. The main issue is how to aggregate utility across society, ideally producing a sort of universal moral calculus. Unfortunately, one person’s gain may be another’s loss, causing inequality or injustice. Arrow’s impossibility theorem shows that any system of aggregating preferences will have some amount of unfairness. Naive attempts to correct this unfairness will simply increase it. The solution therefore is not to aggregate preferences, but to encourage communication of subjective payoff matrices: once the space of solutions is mapped out, the project can naturally devise incentive systems that force people to cooperate and achieve the best outcome for themselves given others’ preferences. Self-modification and external incentives via the concept of a moral or legal framework can achieve outcomes that are unreachable otherwise due to potential non-cooperation. By applying rational and objective judgement to the design of this framework, the project can achieve a near-optimal outcome for both contributors and the project as a whole. No one is omniscient - estimates of such outcomes will naturally be delicate, messy, imprecise, and uncertain. But reasoning about the outcomes of actions seems better than any alternative. Particularly, by examining the ills and injustices of the past, we can pave the way to a post-racist, post-sexist world.

The overall structure of the code of conduct is based on FIRE’s Model Code of Student Conduct, which is itself based on Edward Stoner and John Lowery’s influential and widely cited Model Conduct Code, published in 2004 in the Journal of College and University Law.[1] Universities have existed for thousands of years, and as a result their policies and procedures are naturally more comprehensive than other codes of conduct. FIRE’s code of conduct in particular places an emphasis on the rights of contributors and citations of case law, elements missing from other codes of conduct. Indeed, many project codes of conduct seem to have had no input from a lawyer at all. Although the FIRE code as written is intended for college and university administrations to govern student life, the school-student relationship is quite similar to the project-contributor relationship, and the adaptation is mainly a search-and-replace of terminology. The section on Title XI allegations was combined with the non-Title XI section as open-source projects are not subject to it. Actually, after editing, the FIRE code of conduct is quite similar to the Contributor Covenant in some aspects - evidence of convergent evolution.

FIRE’s goal was to craft procedures that are responsive to government mandates while ensuring fundamental due process for all parties. This commentary gives their notes, providing deeper discussion, the rationale for each provision, and the principles underlying each procedure.

One specific difficulty with the code as written is that the project at present has a severe lack of manpower. To set up the code as written, it requires a president, 4 appeal board members, 4 conduct board members, and a Conduct Administrator, a total of 10 distinct people.

Definitions

I turned “Academic Misconduct” into “Project Contributions”, it is a bit weird but it made sense given how it was used. The precise scope of what is considered to be a project contribution is much less clear than in a school environment, where academic responsibilities are clearly defined. I put in this vague wording about “the identity of the project”. The Contributor Covenant’s “Scope” section only specifies official accounts and representatives, but I think if someone writes a post like “Stroscot sucks: here’s why”, it is only natural to be able to discipline the author of said post for its inaccuracies. Of course Stroscot as a project is founded on principles of intellectual freedom as well, so inaccuracies would most likely be corrected or rebutted rather than used as grounds for rejection, but for example if someone fabricates some benchmark data solely to discredit Stroscot, it makes sense to be able to expel them. Also with something like the Zig/Zen fork, if a fork mislicenses or misrepresents the source of the work, it makes sense to have the power to ban them (and take legal action).

“Free speech rights” was listed as Warning sign #9 of an unenforced code of conduct. I understand why FIRE included it, as they are all about freedom of expression, but even they left it a bit vague in the Model CoC, “The expressive rights protected by the First Amendment”. I expanded it based on their Guide to Free Speech on Campus - it ended up being folded into the list of Prohibited Conduct, as even FIRE acknowledges that free speech is defined by what it is not rather than what it is. In fact, the campus guide derides such “Savings Clauses” that state that speech protected by the First Amendment is excepted.

I guess this brings up the question of why to use FIRE’s code of conduct rather than another, if the difference between codes is simply the extent of the conduct they prohibit. I would say, I like FIRE’s proposition “A contributor is entitled to protection from sticks and stones, but not from words.” (based on the Sticks and Stones rhyme). The question should not be how much one can restrict speech, but rather what level of speech restrictions are minimally necessary. Most codes go in the opposite direction, having either overbroad or vague restrictions on speech.

Jurisdiction

This Section aims to balance three competing interests: that of the project in maintaining a productive environment and its reputation, that of the contributor to be free from unwarranted interference from the project, and the right of all contributors to an environment in which they can partake of the opportunities that the project offers.[4]

Accordingly, the project’s jurisdiction is broadest over actions that take place on its property or under its sponsorship. The project has an additional right to discipline a contributor for Project Contributions wherever they occur because “there are distinct differences” between punishing a contributor for project-related reasons as opposed to acts of misconduct.[5] Project Contributions have “significant ramifications on the discipline and rigor of the projecty’s enterprise and, as a result, on the project’s reputation in the broader community.”[6] Therefore, the project must have wide latitude to take action to maintain its integrity.

However, the project does not act in loco parentis over its contributors. It encourages inquiry and challenging a priori assumptions, rather than the inculcation of societal values. The project encourages contributors to launch new inquiries into our understanding of the world… . The idea that the project exercises strict control over contributors via an in loco parentis relationship has decayed to the point of irrelevance.[7] The overwhelming majority of project contributors are adults and thus are generally free from a project’s invasion of privacy or regulation of morality. The courts began recognizing over 60 years ago that “administrators no longer control the broad arena of general morals… . [T]oday contributors vigorously claim the right to define and regulate their own lives.”[8]

In return, projects have a lower level of responsibility to supervise their contributors. For example, “under New York law, projects have no legal duty to shield contributors or their guests from the harmful off-Project Spaces activity of other contributors.”[9] This Code recognizes that contributors are adults and that the project’s ability to control contributor behavior off-Project Spaces is limited to the authority needed to protect itself from liability.[10] By restricting jurisdiction to situations where the project exercises substantial control over both the area and the Respondent, jurisdiction is limited to circumstances where the project exercises direct supervision, ownership, or rulemaking authority.[11]

The last two provisions make clear, however, that a project may take appropriate action against a contributor who is accused or convicted of a serious crime, especially one that involves allegations of violence, even if the event takes place outside of Project Spaces.[12] These provisions recognize that project administrators must be allowed ample leeway to preserve the safety of other contributors.

Prohibited Conduct

Due process requires that prohibitions be articulated so that the average person can understand what conduct is not allowed. While the level of detail required for project codes of conduct is relaxed compared to criminal law, the requirement of clarity still applies.[14] For all incorporated rules, proper notice is required; no contributor may be punished under a rule that is not readily accessible or is impermissibly vague.[15] This bar is set particularly high where Free Speech Rights are implicated.[16]

The list of proscribed conduct is divided into two categories: Project Contributions and behavioral misconduct. The project has broad discretion in adjudicating allegations relating to project matters. However, even in these cases, the project must adhere to basic standards of fairness and cannot rely on allegations that are based on “either hearsay, anonymous notes or … sheer speculation.”[17] Accordingly, the Project Contributions clause in this Code is designed to comport with due process yet leave the project the latitude necessary to maintain project integrity.

Sample prohibited conduct for Project Contributions is taken from FIRE (deception forgery) and suggestions from ChatGPT.

The disruption clause prohibits substantially and materially disrupting an event via violence or other means to prevent a speaker from speaking, otherwise known as a “heckler’s veto.” This should not be construed to prevent contributors from peacefully protesting and demonstrating against speakers at project-sponsored or other authorized events when those activities do not create a substantial or material disruption to the functions of the project, or a project-sponsored or other authorized event, or substantially or materially prevent others from exercising their Free Speech Rights.

In evaluating whether conduct is substantially and materially disruptive, the project must consider whether a person, with the intent to or knowledge of doing so, significantly hinders another person’s or group’s expressive activity, prevents the communication of a message, or prevents the transaction of the business of a lawful meeting, gathering, or procession. Such intent may be demonstrated by violence, seriously disruptive behavior, or physically blocking or hindering another person from attending, listening to, viewing, or otherwise participating in expressive activity. This prohibition does not include engaging in conduct that is protected under the First Amendment. For example, the project may not restrict lawful protests or counterprotests in the outdoor areas of Project Spaces generally accessible to the members of the public, except during times when those areas have been reserved in advance for other events. Nor may the project punish minor, brief, or fleeting nonviolent disruptions of events that are isolated and short in duration.

The FIRE code prohibits “discriminatory harassment”. This seems to be an artifact of the way harassment is litigated in education law - Title IX as written only prohibits sex discrimination, and it is the U.S. DOE and the courts that have determined that sexual harassment is a form of sex discrimination, 34 CFR 106.30(a) “Sexual harassment” (2). The courts have adopted a “but for” test for Title IX to require showing that the harassment would not have taken place if the victim’s sex was different. Similarly racial harassment is prohibited by Title VI under a similar no-racial-discrimination clause.[18] So when FIRE generalized the definition of harassment, they kept that it must be discriminatory on the basis of a protected attribute, as many universities seem to have done. But definitions in common or state law of harassment include no such discrimination provision. It seems to me that it is sufficient that the conduct is directed at a specific individual. The victim can’t change who they are (their identity), so that is in a sense an immutable attribute. Harassment does not suddenly become free speech because the harasser chose someone to harass by drawing a name from a hat instead of based on a protected characteristic. I think the Davis standard is sufficient for protecting free speech - we do not need a “but for the individual being …” test, and broadly prohibiting “harassment” as opposed to “discriminatory harassment” is more appropriate.

Fighting words, intentional infliction of emotional distress, doxing, trolling, hate speech, and personal attacks I would say are covered under the provisions for harassment and stalking. When they are speech, they are harassment and covered by the Davis standard, and when they are infliction of harm, they are stalking.

The stalking definition is drawn from the federal anti-stalking law created by the Violence Against Women Act.[27] It also covers cyberstalking, which is stalking done through electronic communications such as social media. The intent requirement is intended to prevent the project from using this Section to punish contributors for protected expression.[28]

The Davis standard “… so severe, pervasive, and objectively offensive that it effectively bars the victim’s access to an project opportunity or benefit” is adapted from Davis v. Monroe County Board of Education. The DOE agrees this is the right standard in its Commentary on Title IX Regulations, using “and” not “or” and so on. The Davis decision specifically states that only harassment reaching this extent is actionable in an educational institution. As FIRE says, “It is vital that the project refrain from using harassment policies to punish or investigate protected speech, and the project may protect the freedom of speech while prohibiting actionable harassment by [tracking the Davis standard]. Straying from [the Davis standard] may result in successful litigation against the project.”[19] Notably, there is the Title VII standard “sufficiently severe or pervasive to alter the conditions of [the victim’s] employment and create an abusive working environment”[18] - in racial discrimination cases, the courts have used the Title VII standard in some cases but the Davis standard in others.

The harassment definition covers bullying, intimidation, doxing, and invasion of privacy. Some publications use “hostile climate” instead of “hostile environment”.

The sexual harassment definition is adapted from UN bulletin ST/SGB/2008/5. It is intended to provide clarification on the further definitions of hostile environment and quid pro quo sexual harassment.

There are two main principles the project must keep in mind when enforcing harassment policies. First, contributors cannot be punished solely on the basis of speech that third parties find subjectively offensive, as offensive speech is generally protected by the First Amendment.[20] The second principle is that the speech in question must be directed at an individual in order to constitute harassment.[21] This targeting requirement ensures that contributors are not charged with harassment merely because third parties happen to overhear remarks they find subjectively offensive.[22] By faithfully following the Code’s definition and declining to punish contributors for “free-floating” offensive speech, the project will create an environment where contributors may have robust discussions without fear of being charged with harassment for giving subjective offense.[23]

Per the Campus Guide, federal law requires prohibiting quid pro quo harassment. Restrictions on quid pro quo harassment do not pose any free speech issues.

The Sexual Assault definition tracks the Federal Bureau of Investigation’s Uniform Crime Reporting definitions, which schools must adopt for crime reporting purposes under the Clery Act.[3] This allows the project to use consistent definitions to address community crime and report crime statistics. The project must specify the definition being used when charging contributors with Sexual Assault under this Code.

The College’s obligation to address sexual misconduct extends only to conduct occurring under its programs or activities.[104] This encompasses locations, events, or circumstances in which the project exercised substantial control over both the Respondent and the context in which the misconduct occurred, including any building owned or controlled by an affiliated company that is officially recognized by the project.[105] This limitation is designed, at least in part, to prevent the project from unduly interfering with local law enforcement authorities, which have greater expertise in addressing unlawful sexual misconduct occurring outside the project’s jurisdiction.[106]

The project has the power to punish criminal conduct not otherwise prohibited by this Code. Such jurisdiction is based on state and federal law governing the legal obligations of institutions of higher education. To punish a contributor under this Section, the project must prove every element of the criminal offense by clear and convincing evidence, including the substantial nexus to the project’s property, programs, or Project Space. Due to limitations on resources and expertise, the Code assumes that the project will defer to law enforcement and the judicial system for the investigation and prosecution of criminal acts. Contributors should not be found responsible for violations based on factual findings fundamentally inconsistent with those established by the judicial system. Also, if the project takes Interim Measures against the contributor, such as suspending them pending the outcome of their criminal proceeding, the project must lift these measures in the event of the dismissal of charges or an acquittal.

Example: After a fire in contributor A’s hotel room, police investigate, and contributor A is charged with arson. The project may suspend contributor A while their trial is pending and may expel them if they are convicted. If they are acquitted, the project must readmit contributor A. It may, at its discretion, conduct a disciplinary hearing for endangerment or unauthorized use of dangerous materials. The disciplinary body may not find contributor A responsible for unauthorized use of dangerous materials if the factfinder determined at trial that the fire was accidentally caused by an electrical spark. It may, however, find her responsible for endangerment if the spark resulted from an overload of the electrical system because contributor A used more than the approved number of appliances in her room. If contributor A is found responsible for prohibited conduct, the project may sanction her.

The Drug Free Schools and Communities Act requires schools to enforce drug and alcohol laws and provide its contributors with information regarding the health, legal, and disciplinary consequences of illicit drug use.[24] This provision has been kept.

Another provision prohibits destroying or defacing any kind of expressive display owned by the project or another person or group on the grounds that it is offensive to the viewer.[25] It is important for the Community to understand that there is no right to a “heckler’s veto”; contributors cannot suppress someone else’s speech because they find the speaker’s message offensive.[26]

The Code of Conduct is limited to a list of prohibited conduct. A lot of codes of conduct seem to go in the other direction, focusing on positive conduct. For example, the “Speak Up” code of conduct says “This isn’t an exhaustive list of things that you can’t do.”, and then lists positive attributes such as “be welcoming”, “be considerate”, and “be respectful”. The issue is that such attributes are quite vague - for example, hazing could be advertised as “a welcoming right of passage that respectfully and considerately inducts them into the group’s culture”. There may be some cognitive dissonance in this positive outlook, but only a negative definition draws a bright line and hence can be enforced. It is similar to how one doesn’t know how messed up a cult is until one leaves it and gets an objective view; everything can be rationalized as being done “for good”. This post #6-7 points out that focusing on positive language and not spelling out the negatives means that the code of conduct is simply not equipped to handle anything worse than some “mean words”. Particularly wth FIRE’s due notice requirement, if serious crimes were not covered, then most likely they would have to be dismissed under the requirement for proper notice.

Conduct Code Administrative Structure

This Section was reserved by FIRE for a description of the project’s administrative structure. Per them, it should include “a description of personnel; oversight, selection, and training of the Conduct Board and Appellate Panel members; and dissemination of information about the Code itself”. I just put in a basic thing from ChatGPT.

There are some free training materials from Otter Tech and Frame Shift Consulting.

One idea is to use Debian’s constitution as the basic administrative structure. There is the suggestion in [PX21] to use ranked pairs instead of Schulze - it seems Schulze has less ties, but this is also why Schulze is easier to game. Also ranked pairs satisfies LIIA which Schulze does not (c.f. Table).

Also check out these posts: Python-style governance, Rust-style governance

Interim Measures

Suspending a contributor without a Hearing is generally a violation of due process.[29] However, when Project Spaces safety is at issue, the project may take immediate action to suspend a contributor based upon reliable information that his or her presence on Project Spaces could threaten physical safety, but “the necessary notice and rudimentary Hearing should follow as soon as practicable.”[30] The project must have this authority to ensure that Project Spaces remains safe while conducting investigations and disciplinary processes. It is worth emphasizing that even in an emergency situation, the level of due process required depends on “a balancing of the different interests involved.”[31]

The standards in this Code for determining whether a contributor poses a danger are derived from the Americans with Disabilities Act.[32] Projects have an obligation to preserve the safety of all contributors and therefore may take action against a contributor who poses a “direct threat,” defined as “a significant risk to the health or safety of others that cannot be eliminated by a modification of policies, practices or procedures … .”[33] According to the Department of Education’s Office for Civil Rights (“OCR”), for a direct threat to exist, “there must be a high probability of substantial harm,” not just a “slightly increased or speculative risk,” and such a determination may only be made after “an individualized and objective assessment” of the contributor’s ability to remain safely on Project Spaces.[34] In making this determination, the project must use “reasonable judgment” based on “the best available objective evidence to ascertain the nature, duration, and severity of the risk; the probability that the potential injury will actually occur; and whether reasonable modifications of policies, practices or procedures … or services will mitigate the risk.”[35] This standard allows the project to make a concerted effort to provide a safe environment while preserving the presumption of innocence that due process requires for the Respondent.

Furthermore, Title II regulations define a direct threat as a “significant risk to the health or safety of others that cannot be eliminated by a modification of policies, practices or procedures, or by the provision of auxiliary aids or services.”[36] According to the National Association of project and project Administrators (“NACUA”), there has been no official guidance from OCR or the Department of Justice as to whether projects may remove a contributor or impose a medical withdrawal based on the threat a contributor may pose to his or her own safety.[37] In light of the unsettled status of the law in this area, projects should adjust this Code to reflect future clarification from OCR and the courts.

Nothing in this Section shall limit the project’s ability to offer contributors Supportive Measures, which the project must offer to Complainants alleging sexual misconduct under Title IX.[38] Such measures may be appropriate to restore or preserve a contributor’s access to the project’s programs or activities.[39] The decision to provide Supportive Measures must be divorced from the contributor’s decision whether to file a formal complaint, or any substantive analysis of the merits of Complainant’s accusation, as such measures are aimed at meeting the individual needs of contributors. The project must maintain as confidential any Supportive Measures provided to contributors to the extent that maintaining such confidentiality would not impair its ability to provide the measures.[40] Examples of Supportive Measures include counseling, extensions of deadlines or other course-related adjustments, modifications of work or class schedules, Project Spaces escort services, mutual restrictions on contact between Parties, changes in work or housing locations, leaves of absence, increased security and monitoring of certain areas of the Project Spaces, and other similar measures.[41]

Procedures for Allegations

Reporting

Although disciplinary Hearings are not legal proceedings, they require sufficient safeguards to ensure accuracy, fairness, and confidence in the result. Therefore, the timeliness of the claim is an important consideration. The Supreme Court has noted that statutes of limitations “are found and approved in all systems of enlightened jurisprudence.”[43] Encouraging Complainants to present their claims within a reasonable time protects Respondents from having to respond under circumstances “in which the search for truth may be seriously impaired by the loss of evidence, whether by death or disappearance of witnesses, fading memories, disappearance of documents, or otherwise.”[44] This problem is particularly acute if contributors are affiliated with the project only for a limited time, not present in the Project Spaces, or not available to participate in a Hearing. Accordingly, this Code encourages reporters to initiate a complaint within six months of the alleged Code violation. By recommending that complaints be lodged approximately within a semester, the likelihood remains high that Parties, and contributor witnesses, will still be enrolled at the project and able to attend a Hearing.[45]

Anonymous complaints are in tension with the fundamental principle that the accused must be able to confront his or her accuser.[46] To ensure that no contributor is wrongfully punished, a disciplinary body must be able to hear both sides of the story fully and ask clarifying questions.[47] Such a probing inquiry is not possible when the Complainant does not come forward.[48] Disciplinary Hearings should be presumed inappropriate when the anonymous nature of a complaint compromises a Respondent’s ability to test the credibility of an accusation. The project should strive to develop identifying information from anonymous complaints in order to conduct a fair Hearing.

By providing strong technological measures for anonymous reporting, the project shifts the burden of maintaining anonymity to the reporter, allowing the project to use its powers of investigation to the fullest extent. GlobaLeaks appears to be the simplest and easiest Tor webservice to set up, although SecureDrop’s air-gap architecture offers more protection.

This post lists having a single person, a single generic email, or no contact information as a warning sign of an unenforced code of conduct. Particularly, the reporter must be able to find a conduct administrator who is uninvolved with the incident, so that their complaint is evaluated fairly. The GlobaLeaks software apparently has a specific mode for this where you can send to a group address for faster response or to specific individuals for avoiding conflict of interest.

Preliminary Procedures

When investigating a complaint, the project must conduct an objective evaluation of all relevant evidence—including both inculpatory and exculpatory evidence—and ensure that credibility determinations are not based on a person’s status as a Complainant, Respondent, or witness.[108] As the project conducts an investigation, it has a continuing obligation to provide newly discovered evidence to the Respondent.

This Code also provides that Parties have the right to counsel in cases that do not involve Project Contributions. Project Contributions proceedings often involve the application of academic standards specific to the relevant field and are best handled by those most familiar with these standards. Courts have acknowledged academia’s particular expertise in evaluating academic infractions, and have thus given broad deference to institutions’ determinations in those cases.[49] However, a contributor may opt for a non-attorney advocate or advisor in any kind of Hearing, including a Project Contributions hearing.

In order to preserve contributors’ due process rights and avoid hindering law enforcement, the project should delay interviewing witnesses until law enforcement has had the opportunity to do so. The project shall avoid scheduling meetings that conflict with a contributor’s concurrent criminal proceedings, and shall not use the disciplinary process to circumvent contributors’ Fifth Amendment rights.[107]

To avoid turning disciplinary Hearings involving counsel into full-blown trials, the project and the attorney should come to a shared understanding that the institution may regulate the attorney’s behavior during the process and that the formal rules of evidence shall not apply.[50] For guidance on the attorney’s role, the project may refer attorneys to guidelines used by other institutions that have opted to allow a right to counsel.[51] Nothing in this Section shall limit a contributor’s right to have an attorney actively participate in disciplinary proceedings.

To protect contributors’ privacy during the disciplinary process, the project cannot access, consider, disclose, or otherwise use a Party’s records that are made or maintained by a physician, psychiatrist, psychologist, or other recognized professional or paraprofessional in connection with the provision of treatment to the Party, unless the project obtains that Party’s voluntary, written consent.[109]

Informal resolution procedures include mediation (discussed in Section VI.2) and other measures short of a full investigation and adjudication of the issues. Before engaging in these procedures, the project shall provide Parties with written notice of the allegations; the requirements of the informal resolution process, such as how it relates to the formal disciplinary process; and any potential consequence of the process, including any records that can be maintained or shared by the project. The project must also obtain Parties’ voluntary, written consent to the informal resolution process.[52]

The project may not make any negative inferences against a Party solely for their failure to participate in the Conduct process. This includes the Respondent’s refusal to answer questions when meeting with project administrators. However, a contributor’s failure to participate does not preclude the project from conducting the disciplinary process in that contributor’s absence.

At any stage in the disciplinary proceeding, the project must allow for the limited extension of timeframes for good cause, so long as it gives written notice to Parties of the delay or extension and the reasons for the action. Good cause may include considerations such as the absence of Parties or witnesses, concurrent law enforcement activity, the need for language assistance, or the accommodation of disabilities.[111]

The project may establish rules for how advisors conduct themselves when participating in the contributor disciplinary process, so long as those rules apply equally to Parties. These rules may not restrict an advisor’s ability to actively participate in every stage of the process.

Mediation

Alternative dispute resolution, such as mediation, is allowed so long as all Parties make a voluntary, informed decision to engages in such procedures. Under no circumstance may the project require or in any way pressure contributors to go through the informal resolution process.[114] The project must use professional, certified, and experienced mediators for this process.

Mediation plays an important role in resolving many of the disputes that most frequently occur on Project Spaces. It is most effective in situations where the Respondent acknowledges that his or her behavior overstepped a norm, such as a roommate conflict. It focuses on finding a shared solution developed by Parties rather than submitting the dispute to a disciplinary body. As long as mediation is truly voluntary and the mediator is trained and complies with the applicable professional standards, the process may be productive for all Parties.

It is critical that Parties understand that either side may withdraw from the process at any time before an agreement is signed. However, if Parties opt to mediate, they should understand that any agreement is binding just as if it was handed down from a disciplinary body. Also, confidentiality forbids any Party from disclosing statements made during mediation to unauthorized third parties such as disciplinary body members. Finally, a Party may not be found responsible as the result of an unsuccessful mediation session.

Procedural Rights

The goal of these procedural rights is not to unnecessarily protect contributors or unduly burden the project, but rather to ensure that disciplinary Hearings obtain results based on an accurate and impartial presentation of the facts. Above all, this truth-seeking function is the crux of why due process must be upheld regardless of the circumstances of the proceeding.[55]

Although the project is encouraged to employ procedural protections in Project Contributions proceedings, this Code is mindful of the Supreme Court’s reluctance to mandate how schools make academic determinations.[56] Project Contributions proceedings should be fundamentally fair but may be best governed by the standards of the relevant academic discipline rather than the procedures of this Section.

The presumption of innocence affords contributors the right to remain silent during disciplinary proceedings and prevents the project from punishing contributors for remaining silent or drawing adverse inferences from a contributor’s silence. Forcing contributors to speak will make them less likely to participate in the proceeding, which can undermine the accuracy of the outcome.[57] Punishing contributors for their silence implicitly equates silence with guilt. However, contributors may wish to remain silent for any number of reasons unrelated to their guilt or innocence: poor speaking skills, shyness, intimidation, nervousness, lack of faith in the system, or advice from an attorney to remain silent if civil liability or criminal charges are pending or foreseeable.[58] The silence of either Party does not relieve the Board of its obligation to find responsibility only when such a finding is supported by the evidence.

The presumption of innocence also prevents the project from placing the burden of proof on the Respondent for any offense.[59] This is a bedrock principle of any fair system of adjudication, and is constitutionally mandated in all criminal and civil cases.[60] The presumption of innocence also prevents the project from enacting rules that shift the burden of proof to the Respondent, such as policies that require Respondents in sexual misconduct cases to prove they obtained consent.[61]

Adequate notice is a hallmark of any adversarial system and is constitutionally required for public project contributors facing serious disciplinary action.[62] Adequate notice will “apprise interested parties of the pendency of the action and afford them an opportunity to present their objection.”[63] Considering the important liberty and property interests contributors possess in their education,[64] written notice fully explaining all charges must be given to Parties. In the interests of uniformity and fair play, adequate notice must be provided regardless of the severity of the alleged violation.

Adequate notice also ensures that contributors have sufficient time to prepare for the proceeding. The project is encouraged to provide notice at least three business days prior to any meeting, including preliminary meetings, where the contributor is questioned about their actions by a Project Official. It is important that the information given to Parties be as specific as possible, especially the list of people allegedly involved in and affected by the violation. This allows contributors to conduct the necessary investigations and present a factually accurate case to the Board.[65]

In terms of the disciplinary body itself, a core component of due process is an impartial tribunal.[66] Impartiality generally requires the prohibition of conflicts of interest that have the potential to undermine the integrity of the disciplinary body.[67] Due to the intimate context of the Community, courts have found that factfinders may retain sufficient neutrality despite having some prior knowledge of the issues or acquaintance with Parties.[68]

The roles of investigator, factfinder, and advocate should be kept as separate as possible. Separating these roles maximizes their ability to check one another to ensure a fundamentally fair proceeding.[69] When these roles are conflated, there is a greater chance that error or bias will skew the outcome, and courts have emphasized the serious due process concerns that arise as a result of such arrangements.[70]

Specifically, individuals serving on Boards must abstain from serving on the Appellate Panel for that same incident, as those serving on the original Board are naturally likely to be predisposed to uphold their previous decision.[71] Likewise, Complainants should not be allowed or required to prosecute the violation on behalf of the project or serve as the investigator or factfinder, as they have a vested stake in the outcome of the proceeding they helped initiate.[72] However, the investigator may present the project’s case to the Board, as the investigator’s information-gathering function may put that individual in the best position to be an advocate for the project. To protect the rights of Respondents in this arrangement, however, the investigator must not have any factfinding power or any ability to unduly influence the Board. Finally, Parties must be able to challenge the impartiality of the body without fear of negative repercussions.

To maximize the truth-finding ability of disciplinary proceedings, Parties must have the right to access relevant evidence prior to the Hearing. Obtaining such evidence ten business days before the Hearing provides Parties with the opportunity to conduct an investigation and present a comprehensive case to the disciplinary body.[73] Examples of the types of the evidence to which the project should grant Parties access include “complainant statements, third-party witness statements, electronically stored information, written communications, social media posts, and demonstrative evidence.”[74] Although the project lacks the power to compel witness attendance, the project and Parties should make every effort to ensure that witnesses with relevant information are present for the Hearing.

Concordant with the right to access relevant evidence is the right to present such evidence to the disciplinary body. The project may not limit the scope of material evidence presented or deny a Party the right to be heard, a “fundamental requirement of due process.”[75] As a critical safeguard against the wrongful punishment of innocent contributors, courts have protected this right for contributors facing suspension or expulsion.[76] The Code guarantees the right to be heard in order to build trust in the project’s adjudicatory system and to ensure that outcomes are based on all available evidence. The reputation of the project depends on both the perception and the reality of fair procedures and accurate results, the denial of which has been the basis of extensive litigation.[77] Accordingly, the protection of this right is in the best interest of both the project and Parties.

The right to meaningful cross-examination has been identified by the Supreme Court as the “greatest legal engine ever invented for the discovery of truth.”[78] Because of the project’s inability to subpoena information, cross-examination is all the more essential to eliciting truth in project disciplinary proceedings where evidence is often scarce and may consist primarily of witness testimony.[79] Following several lower court rulings establishing this right in certain circumstances, the Code guarantees this right for all misconduct proceedings.[80] The criteria for restricting cross-examination are drawn from the Federal Rules of Evidence and should be interpreted narrowly.[81]

Maximizing the truth-seeking potential of cross-examination is one reason why the right to the active participation of an attorney is crucial in project disciplinary proceedings. In any adversarial system, it is an “obvious truth” that lawyers are “necessities, not luxuries,” and that the right to counsel is “fundamental and essential to a fair trial.”[82] Thus, under this Code, the full and active participation of an advisor, including counsel, is allowed at all stages of the process.[135] This is to ensure fundamental fairness, maximize the truth-finding function of this process, and to protect the rights of Respondents, who may be facing concurrent or subsequent criminal charges.[136]

The importance of active assistance of counsel becomes more pronounced when the Respondent faces accusations of violent acts or sexual misconduct which, if taken as true, could end the contributor’s career, brand the contributor as a violent criminal or sexual predator, and cost the contributor tens of thousands of dollars in lost earnings.[83] Considering the severe consequences and complicated nature of these proceedings, contributors should be allowed an advisor or advocate of their choice, including an attorney, to actively represent them.[84] There have been cases in which project tribunals were used to circumvent the due process protections of the criminally accused, most prominently in the context of Title IX sexual misconduct proceedings.[85] Since the transcripts of project disciplinary Hearings are generally admissible against contributors in criminal proceedings, attorney participation is essential to protecting Respondents’ right against compelled self-incrimination.[86]

Due to the emotionally charged nature of sexual misconduct proceedings, allowing the Parties to personally cross-examine each other may prove to be problematic.[134] In such cases, where a Party does not have an advocate of choice, the project has a provision to retain a skilled attorney who is professional, courteous, and, if possible, familiar with the unique nature of sexual misconduct proceedings, in order to maximize the effectiveness of cross-examination and encourage full witness participation. Considering that these proceedings may result in suspension or expulsion, but lawyers are often quite expensive, Parties are encouraged to utilize this experienced attorney rather than rely on the Board or conduct cross-examination themselves.

For violations carrying lesser punishments, the Code currently ensures a contributor’s right to an advisor or advocate. This right may be restricted or revised in the future if it is subject to abuse. When charging contributors under this Code, the project is expected to clearly state whether the right to active assistance of counsel is triggered. In such circumstances, the project must allow counsel to speak directly to the disciplinary body, make closing and opening statements, cross-examine witnesses, and provide the contributor with support, guidance, and advice.[87]

Due to OCR’s mandate that colleges receiving federal funds must investigate and address Students’ allegations of sexual misconduct,[131] colleges (the vast majority of which receive federal funds) adjudicate an increasingly wide range of felony-level offenses such as Sexual Assault.[132] Considering that universities lack the institutional expertise and resources of the criminal justice system,[133] the best way the College can establish fundamentally fair adjudications is by upholding the principles of due process espoused in this Code.

The importance of upholding the meaningful right to appeal is discussed in the notes following Section VI.4.

Expulsion is the most severe penalty the project may impose upon a contributor and thus requires a unanimous vote of the Board. Expulsion leaves a permanent mark on a contributor’s career and greatly limits a contributor’s ability to continue his or her goals.[88] Such a penalty has far-reaching consequences that extend beyond the project, especially when the violation involves violence, fraud, or sexual misconduct.[89] By abruptly ending a contributor’s career and making it extremely difficult to continue at another project, expulsion effectively denies a contributor the ability to obtain a livelihood.[90] In order to reserve this penalty for situations where it is most warranted, every member of the Board must agree on the decision to expel a Responsible contributor.

Considering the severe consequences of a finding of responsibility for sexual misconduct, the project is required to prove its case by clear and convincing evidence.[137] By requiring this high standard of proof, the project can avoid erroneous outcomes and better protect Respondents from being unfairly labeled as sex offenders. The drastic and societal consequences of a finding of responsibility for sexual misconduct warrant a greater degree of certainty before making this determination.[138]

For other offenses, a higher standard of proof offers greater protection for Respondents by requiring more certainty before a contributor is found responsible for even minor offenses, which can impact a contributor’s career and employment prospects.[91] Therefore, regardless of the seriousness of an alleged offense, a Respondent may not be punished under a preponderance of the evidence standard or any other standard of proof lower than clear and convincing evidence.

When the project limits a Respondent’s right to cross-examine witnesses, the project must be wary of excluding relevant evidence and violating the constitutional rights of the Respondent. As such, cross-examination should only be limited to prevent manifest injustice.

Appeals

The appeals process is not intended to undermine the original factfinders or undertake an entirely new investigation. Rather, the reviewing body should focus on identifying flaws in the initial Hearing that may have compromised the result, such as a lack of impartiality or the insufficiency of supporting evidence. This requires the project to provide a reliable record of what was said at the Hearing, including transcripts of any Hearing for violations punishable by expulsion.[92] Also, like the initial disciplinary Hearing, the appeals process must comport with requirements of due process.[93] Departing from the procedures outlined in the Code may itself constitute a due process violation.[94]

Under Title IX, and this Code, Complainants are allowed to appeal an adverse decision or sanction.[141] However, there are serious due process concerns with repeatedly subjecting the Respondent to disciplinary proceedings after he or she is found not responsible for the alleged act.[142] The Fifth Amendment prohibition against double jeopardy is a core principle of any system that respects due process such as the one proposed by this Code.[143] For the same reasons of fundamental fairness that our criminal justice system forbids double jeopardy, there are significant issues with allowing the Complainant to appeal.[144] Nonetheless, many countries have exceptions to double jeopardy. For example, the appeal offers an opportunity to continue the case proceedings in the light of new evidence.

Sanctions

Courts may review the constitutionality of not only the procedures employed in disciplinary proceedings but also any resulting sanctions. For instance, punishments found “arbitrary, capricious, or wholly unrelated to the legitimate state goal of maintaining an atmosphere conducive to learning” may run afoul of substantive due process rights.[145] In re Kickertz offers several other potential bases for invalidating particular sanctions: if the sanction was too harsh for the offense,[146] if the sanction imposed an unreasonable cost on the contributor,[147] if the disciplinary body failed to consider extenuating circumstances,[148] or if the sanction raised equal protection issues.[149]

Mandatory apologies or essays demonstrating increased “awareness” or “sensitivity” raise concerns under the First Amendment and are therefore discouraged.[150] As with censorship of contributor speech, a court is less likely to find compelled speech lawful.[151] Apologies and other mandated written or oral expression regarding “lessons learned” may be acceptable as part of a mediated settlement, provided that the agreement is truly voluntary. Sanctions consisting of pedagogical assignments should be overseen by a official member in a related field.

The standard by which the project may punish contributor groups is drawn from federal labor law.[152] The standard incorporates the basic First Amendment principle that mere membership in a group should not by itself make a contributor responsible for the group’s misconduct.[153]

Confidentiality

This Section is based on the restatement of the requirements for confidentiality contained in Department of Education guidance.[157] Nothing in this Section shall be construed to violate any obligations the project may have under FERPA or the Clery Act.[158]

TODO: GPDR compliance?

Footnotes

[1]

Edward N. Stoner II & John Wesley Lowery, Navigating Past the “Spirit of Insubordination:” A Twenty-First Century Model Conduct Code With a Model Hearing Script, 31 J.C. & U.L. 1 (2004).

[2]

Nondiscrimination on the Basis of Sex in Education Programs or Activities Receiving Federal Financial Assistance, 85 Fed. Reg. 30026, 30574 (2020) (to be codified at 34 C.F.R. § 106.30) (hereinafter “Title IX Regulations”).

[3]

34 C.F.R. § 668.46(a) (2019) (definitions).

[4]

Compare Hill v. Bd. of Trs. of Mich. State Univ., 182 F. Supp. 2d 621, 627, n.2 (W.D. Mich. 2001) (stating that a school may take off-campus conduct into account if the perpetrator might commit the same harmful acts on campus) with Roe v. St. Louis Univ., 746 F.3d 874, 884 (8th Cir. 2014) (finding university not liable under Title IX due to lack of sufficient control over sexual harassment at an off-campus party) and Ostrander v. Duggan, 341 F.3d 745, 750 (8th Cir. 2003) (finding university not liable under Title IX for actions at a fraternity house that it “did not own, possess, or control”); see also Yeasin v. Univ. of Kan., 360 P.3d 423, 430 (Kan. Ct. App. 2015) (“It seems obvious that the only environment the University can control is on campus or at University sponsored or supervised events. After all, the University is not an agency of law enforcement but is rather an institution of learning.”).

[5]

Bd. of Curators of Univ. of Mo. v. Horowitz, 435 U.S. 78, 87 (1978); see, e.g., Hand v. Matchett, 957 F.2d 791, 794 (10th Cir. 1992) (holding that a college’s wide-ranging power to punish academic dishonesty includes the ability to revoke a degree).

[6]

Pugel v. Bd. of Trs. of the Univ. of Ill., 378 F.3d 659, 668 (7th Cir. 2004) (applying First Amendment analysis in the enrollment and employment context to hold that the university did not violate a graduate student’s free speech rights by terminating her employment as a teaching assistant and expelling her from the university when she presented false data at a conference).

[7]

McCauley v. Univ. of the Virgin Islands, 618 F.3d 232, 243-245 (3d Cir. 2010).

[8]

Bradshaw v. Rawlings, 612 F.2d 135,140 (3d Cir. 1979).

[9]

Guest v. Hansen, 603 F.3d 15, 21 (2d Cir. 2010).

[10]

Hartman v. Bethany Coll., 778 F. Supp. 286, 291 (N.D. W. Va. 1991) (stating it would not be consistent with the “settled expectations of students, parents or colleges” to require colleges to supervise student activities that take place off-campus and that are not sponsored by the college).

[11]

Compare Davis v. Monroe County Board of Education, 526 U.S. 629, 646 (1999) (finding that the school exercised substantial control over the alleged peer harassment because it occurred during school hours and on school grounds) with Guest, 603 F.3d at 22 (holding that the school did not exercise control over a snowmobile accident because the most of the dangerous activity occurred off campus).

[12]

Krasnow v. Virginia Polytechnic Inst. & State Univ., 414 F. Supp. 55 (4th Cir. 1976) (finding no substantive due process violation in university’s use of disciplinary process to punish student on probation for alleged off-campus drug possession); Furey v. Temple Univ., 884 F. Supp. 2d 223, 248 (E.D. Pa. 2012) (allowing university to take action against a student for an alleged off-campus attack on police officers).

[13]

20 U.S.C. § 1681 (1976).

[14]

See Bethel Sch. Dist. v. Fraser, 478 U.S. 675, 686 (1986).

[15]

Goss v. Lopez, 419 U.S. 565, 581 (1975).

[16]

Stephenson v. Davenport Cmty. Sch. Dist., 110 F.3d 1303, 1309 (8th Cir. 1997) (noting “a proportionately greater level of scrutiny is required because the regulation reaches the exercise of free speech.”).

[17]

See Papelino v. Albany Coll. of Pharm. of Union Univ., 633 F.3d 81, 87 (2d Cir. 2011) (describing New York state appellate court decision to annul an expulsion based on an invalid “statistical compilation” purportedly showing that the plaintiffs cheated).

[18] (1,2)

“The Misapplication of Peer Harassment Law on College and University Campuses and the Loss of Student Speech Rights,”” by Azhar Majeed, The Journal of College and University Law, Vol. 35, No. 2, 2009.

[19]

See McCauley v. Univ. of the Virgin Islands, 618 F.3d 232, 237 (3d Cir. 2010) (striking down university harassment policy prohibiting “any act which causes … mental harm or which … frightens, demeans, degrades or disgraces any person”); DeJohn v. Temple Univ., 537 F.3d 301, 319 (3d Cir. 2008) (permanently enjoining university from enforcing overbroad sexual harassment policy that “provides no shelter for core protected speech”); Dambrot v. Central Mich. Univ., 55 F.3d 1177, 1184 (6th Cir. 1995) (finding university racial harassment policy prohibiting “negative” and “offensive” speech unconstitutionally vague and overbroad); Booher v. Bd. of Regents, N. Kentucky Univ., No. 2:96-CV-135, 1998 WL 35867183, at *9 (E.D. Ky. July 22, 1998) (finding university sexual harassment policy unconstitutionally vague because subjective language failed to give students notice of what was prohibited).

[20]

E.g., Papish v. Bd of Curators of the Univ. of Missouri, 410 U.S. 667, 670 (1973) (“[T]he mere dissemination of ideas—no matter how offensive to good taste—on a state university campus may not be shut off in the name alone of ‘conventions of decency.’”); Texas v. Johnson, 491 U.S. 397, 414 (1989) (“If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.”). Note that speech accompanied by non-consensual physical contact is more likely to constitute punishable harassment. Compare Riccio v. New Haven Bd. of Educ., 467 F. Supp. 2d 219, 222 (D. Conn. 2006) (repeatedly being called “bitch,” “dyke,” “freak,” “lesbian,” “gothic,” and other derogatory names was not severe or pervasive enough to amount to actionable harassment) with Vance v. Spencer Cty. Pub. Sch. Dist., 231 F.3d 253, 259 (6th Cir. 2000) (persistent requests for sexual favors combined with inappropriate touching and a physical attack constituted harassment) and Doe v. Brimfield Grade Sch., 552 F. Supp. 2d 816, 819–20 (C.D. Ill. 2008) (repeatedly “grabbing, twisting, and hitting” plaintiff’s genitals, teasing him about the incidents, reprimanding him for complaining, and telling him to “stick up for himself” constituted harassment).

[21]

See Lyle v. Warner Bros. Television Prods., 132 P.3d 211, 223, 225 (Cal. 2006) (finding that “annoying or merely offensive comments” that “did not involve and were not aimed at plaintiff” did not constitute actionable workplace harassment).

[22]

See United States v. Playboy Entm’t Grp., Inc., 529 U.S. 803, 813 (2000) (“Where the designed benefit of a content-based speech restriction is to shield the sensibilities of listeners, the general rule is that the right of expression prevails, even where no less restrictive alternative exists.”); Eugene Volokh, Freedom of Speech and Workplace Harassment, 39 UCLA L. REV. 1791 (1992) (arguing that the targeting requirement helps distinguish harassment from protected speech).

[23]

See Healy v. James, 408 U.S. 169, 180 (1972) (“The college classroom with its surrounding environs is peculiarly the marketplace of ideas … .”) (internal quotations omitted); Saxe v. State Coll. Area Sch. Dist., 240 F.3d 200, 204 (3d Cir. 2001) (“There is no categorical ‘harassment exception’ to the First Amendment’s free speech clause.”).

[24]

20 U.S.C. § 1011i (2017).

[25]

See Giebel v. Sylvester, 244 F.3d 1182 (9th Cir. 2001) (university tearing down fliers announcing a lecture violates the First Amendment).

[26]

Forsyth Cty., Ga. v. Nationalist Movement, 505 U.S. 123, 134 (1992) (“Listeners’ reaction to speech is not a content-neutral basis for regulation.”).

[27]

18 U.S.C. § 2261A (2018).

[28]

United States v. Sayer, 748 F.3d 425, 435 (1st Cir. 2014) (stalking statute “clearly targets conduct performed with serious criminal intent, not just speech that happens to cause annoyance or insult”); United States v. Petrovic, 701 F.3d 849, 856 (8th Cir. 2012) (stalking statute incorporates First Amendment concerns by requiring “both malicious intent on the part of the defendant and substantial harm to the victim”); United States v. Shepard, No. CR 10-1032-TUC-CKJ, 2012 WL 113027, at *9 (D. Ariz. Jan. 13, 2012) (“[I]t is a defendant’s intent to kill, injure, or harass, etc. that precludes … [the stalking statute] from infringing on First Amendment rights when a person expresses him or herself without the intent proscribed by the statute.”); United States v. Cassidy, 814 F. Supp. 2d 574, 588 (D. Md. 2011) (holding stalking statute unconstitutional as applied for punishing online criticism of a religious leader).

[29]

Wells v. Columbus Tech. Coll., 2013 U.S. App. LEXIS 4022, 5–6 (11th Cir. 2013) (citing Castle v. Appalachian Tech. Coll., 631 F.3d 1194, 1200 (11th Cir. 2011)).

[30]

Goss v. Lopez, 419 U.S. 565, 582–83 (1975); Nguyen v. Univ. of Louisville, 2006 U.S. Dist. LEXIS 20082 (W.D. Ky. Apr. 14, 2006).

[31]

Barnes v. Zaccari, 669 F.3d 1295, 1306 (11th Cir. 2012) (citing Mathews v. Eldridge, 424 U.S. 319, 334–35 (1976)).

[32]

See Bragdon v. Abbott, 524 U.S. 624, 648–49 (1998) (interpreting the ADA).

[33]

28 C.F.R. §35.104 (2016) (definitions).

[34]

College Bd. of Nassau County v. Arline, 480 U.S. 273, 287 (1987), superseded by statute on as stated in Shiring v. Runyon, 90 F.3d 827, 831 (3d Cir. 1996) (requiring individual assessment); Ascani v. Hofstra Univ., No. 98-7756, 1999 U.S. App. LEXIS 7654 (2d Cir. 1999) (order); Letter to Marietta College, OCR No. 15-04-2060 31 NDLR 23 (2005); Bowman-Snyder Findings Letter, Compl. # 15-04-2042 (Dec. 22, 2004).

[35]

28 C.F.R. §35.139(b) (2011).

[36]

See 28 C.F.R. § 35.104 (2016) and § 35.139 (2011) (emphasis added).

[37]

NACUA NOTES, NEW TITLE II REGULATIONS REGARDING DIRECT THREAT: DO THEY CHANGE HOW COLLEGES AND UNIVERSITIES SHOULD TREAT STUDENTS WHO ARE THREATS TO THEMSELVES?, Vol. 10, No. 1 (Nov. 2011); see Criswell-Bower Findings Letter, Compl. # 15-10-2098 (Dec. 16, 2010).

[38]

Title IX Regulations, supra note 3, at §106.44(a).

[39]

FIRE, Comment in Support of the Department of Education’s Proposed Regulations on Title IX Enforcement 3 (Jan 30., 2019), thefire.org/fires-comment-in-support-of-the-department-of-educations-proposed-regulations-on-title-ix-enforcement [hereinafter “FIRE Comment”].

[40]

See Title IX Regulations, supra note 3, at § 106.30.

[41]

See Title IX Regulations, supra note 3, at § 106.30.

[42]

Id. at 35–36 (discussing how requiring universities to disclose all evidence, as opposed to only evidence they intend to use, protects due process by preventing institutional conflicts of interest).

[43]

United States v. Kubrick, 444 U.S. 111, 117 (1979) (citing Wood v. Carpenter, 101 U.S. 135, 139 (1879)).

[44]

Id.

[45]

See Gomes v. Univ. of Me. Sys., 365 F. Supp. 2d 6, 21 (D. Me. 2005) (listing cases where hearings were held within days to two weeks).

[46]

See, e.g., DeJesus v. Penberthy, 344 F. Supp. 70, 75 (D. Conn. 1972) (describing the importance of in-person testimony, especially where expulsion is a possible penalty); In re Kickertz v. New York Univ., 952 N.Y.S.2d 147, 154 (N.Y. App. Div. 2012) (criticizing university because the “petitioner was not afforded any, let alone a fair, opportunity to cross-examine the witnesses whose accusations were the basis of the charges lodged against her”), aff’d as modified on other grounds, 25 N.Y.3d 942 (2015).

[47]

DeJesus, 344 F. Supp. at 75-76 (finding that “[t]he Board did not have an adequate opportunity to determine the facts” because the evidence at the hearing was given solely through the text of earlier interviews).

[48]

Goss v. Lopez, 419 U.S. 565, 581 (1975) (“[F]airness can rarely be obtained by secret, one-sided determination of facts decisive of rights … .”) (internal quotations omitted).

[49]

See, e.g., Bd. of Curators of Univ. of Mo. v. Horowitz, 435 U.S. 78, 87–88 (1978).

[50]

See BRETT SOKOLOW, THE RIGHT TO COUNSEL IN COLLEGE DISCIPLINARY HEARINGS: HOW MUCH PROCESS IS DUE?, National Center for Higher Education Risk Management monograph (2001) (describing safeguards that schools can take to preserve the procedural simplicity of college disciplinary hearings).

[51]

See, e.g., RUTGERS UNIVERSITY, FREQUENTLY ASKED QUESTIONS FROM ATTORNEYS, studentconduct.rutgers.edu/frequently-asked-questions/frequently-asked-questions-for-attorneys; UNIVERSITY OF MICHIGAN, FAQS FOR PARENTS, FAMILY, ATTORNEYS, AND FRIENDS, oscr.umich.edu/article/faqs-parents-family-attorneys-and-friends.

[52]

See Section VI.2.3.

[53]

In addition to mediation, the College may utilize other restorative justice techniques with the consent of all Parties. See, e.g., JUSTINE DARLING, RESTORATIVE JUSTICE IN HIGHER EDUCATION: A COMPILATION OF FORMATS AND BEST PRACTICES (2011) (unpublished M.A. thesis, University of San Diego), skidmore.edu/campusrj/documents/Darling-2011-campus-programs.pdf.

[54]

See Sections VI.4 and VII.4 Appeals.

[55]

See Mathews v. Eldridge, 424 U.S. 319, 344 (1976) (“[D]ue process rules are shaped by the risk of error inherent in the truthfinding process as applied to the generality of cases, not the rare exceptions.”); Joint Anti-Fascist Refugee Comm. v. McGrath, 341 U.S. 123, 171 (1951) (Frankfurter, J., concurring) (“The validity and moral authority of a conclusion largely depend on the mode by which it was reached… . No better instrument has been devised for arriving at truth than to give a person in jeopardy of serious loss notice of the case against him and opportunity to meet it.”).

[56]

Bd. of Curators of Univ. of Mo. v. Horowitz, 435 U.S. 78, 89–91 (1978) (discussing the harms of requiring the full array of procedural protections in academic proceedings).

[57]

Judicial Training Manual, National Center for Higher Education Risk Management, at 17, ncherm.org/pdfs/Judicial_Training_Manual.pdf.

[58]

Id. at 16.

[59]

See François Quintard-Morénas, The Presumption of Innocence in the French and Anglo-American Legal Traditions, 58 AM. J. COMP. L. 107, 110 (2010) (“[A]n elementary principle of justice requires that plaintiffs prove their allegations and that the accused be considered innocent in the interval between accusation and judgment.”).

[60]

See In re Winship, 397 U.S. 358, 361 (1970) (holding that the prosecution must prove every element of the crime for the court to find guilt); Schaffer ex rel. Schaffer v. Weast, 546 U.S. 49, 56 (2005) (“[P]laintiffs bear the risk of failing to prove their claims.”); JOHN SASSOON, ANCIENT LAWS AND MODERN PROBLEMS: THE BALANCE BETWEEN JUSTICE AND A LEGAL SYSTEM 42 (2001) (“[T]he burden of proof rested in the third millennium BC where it would rest today—with the accuser.”).

[61]

See State v. Lynch, 309 P.3d 482, 488 (Wash. 2013) (finding that the overwhelming majority of courts have held that due process is violated when the defendant is required to prove any fact which negates an element of the offense charged); Mock v. University of Tennessee at Chattanooga, No. 14-1687-II (Tenn. Ch. Ct. Aug. 10, 2015), available at chronicle.com/items/biz/pdf/memorandum-mock.pdf (finding that university’s affirmative consent standard improperly shifted the burden of the proof to the accused student); Letter from Susan Kruth, Senior Program Officer, Legal and Pub. Advocacy, FIRE, to Catherine Lhamon, Assistant Sec’y for Civil Rights, Office for Civil Rights (Nov. 24, 2015), thefire.org/fire-letter-to-office-for-civil-rights-assistant-secretary-for-civil-rights-catherine-lhamon-november-24-2015 (arguing that affirmative consent policies violate the presumption of innocence by impermissibly shifting the burden of proof to the accused).

[62]

Goss v. Lopez, 419 U.S. 565, 579 (1975) (oral or written notice is required for students facing suspension); Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950) (notice is “[a]n elementary and fundamental requirement of due process”).

[63]

Mullane, 339 U.S. at 314.

[64]

Goss, 419 U.S. at 576.

[65]

See HARVEY A. SILVERGLATE & JOSH GEWOLB, FIRE’S GUId. TO DUE PROCESS AND CAMPUS JUSTICE [hereafter FIRE GUIDE] 11–15, thefire.org/fire-guides/fires-guide-to-due-process-and-campus-justice.

[66]

Marshall v. Jerrico, Inc., 446 U.S. 238, 242 (1980) (“This requirement of neutrality in adjudicative proceedings … helps to guarantee that life, liberty, or property will not be taken on the basis of an erroneous or distorted conception of the facts or the law.”); Nash v. Auburn Univ., 812 F.2d 655, 665 (11th Cir. 1987) (“An impartial decision-maker is an essential guarantee of due process.”) (internal citations omitted).

[67]

See Marshall, 446 U.S. at 242 (impartiality “preserves both the appearance and reality of fairness … by ensuring that [each party] … may present his case with assurance that the arbiter is not predisposed to find against him”) (internal citations omitted).

[68]

Nash, 812 F.2d at 666 (finding no due process violation when panelist knew of suspicions against the accused student and answered procedural questions from potential witnesses before the hearing).

[69]

See James M. Picozzi, University Disciplinary Process: What’s Fair, What’s Due, and What You Don’t Get, 96 YALE L.J. 2132, 2142–43 (1987) (“By melding all of these roles in one person, these functions no longer check one another. Any administrator who initially decides a student should be charged naturally has a predisposition to find him guilty of that charge.”).

[70]

Smith v. Denton, 895 S.W.2d 550, 555 (Ark. 1995) (finding due process concerns when one college administration served as the investigator, prosecutor, witness, and judge); Doe v. Brandeis Univ., No. CV 15-11557-FDS, slip op. (D. Mass. Mar. 31, 2016), at 70 (“The dangers of combining in a single individual the power to investigate, prosecute, and convict, with little effective power of review, are obvious. No matter how well-intentioned, such a person may have preconceptions and biases, may make mistakes, and may reach premature conclusions.”) (footnote omitted).

[71]

Marshall v. Maguire, 424 N.Y.S.2d 89, 92 (N.Y. Sup. Ct. 1980) (vacating the expulsion of a student because the same individual served on both the hearing and appeals panels).

[72]

See FIRE GUIDE, supra note 73, at 107.

[73]

See Id. at 11–15.

[74]

Safe Campus Act, H.R. 3406, 114th Cong. §164(a)(3) (2015).

[75]

See Mathews v. Eldridge, 424 U.S. 319, 333 (1976) (“The right to be heard before being condemned to suffer grievous loss of any kind, even though it may not involve the stigma and hardships of a criminal conviction, is a principle basic to our society.”) (internal quotations and citations omitted). However, in sexual misconduct cases, the College may restrict the presentation of evidence regarding a Party’s past sexual behavior. The College is encouraged to defer to state rape shield laws in determining the admissibility of such evidence. See generally Harriett Galvin, Shielding Rape Victims in the State and Federal Courts: A Proposal for the Second Decade, 70 MINN. L. REV. 763 (1986) (discussing the rationale and history of rape shield laws); see also National Center for Prosecution of Child Abuse, Rape Shield Statutes, National District Attorney’s Association (2011), ndaa.org/wp-content/uploads/NCPCA-Rape-Shield-2011.pdf (compiling state rape shield laws).

[76]

Goss v. Lopez, 419 U.S. 565, 581 (1975) (students facing suspension must be given “an opportunity to present his sId. of the story”); Dixon v. Alabama State Bd. of Ed., 294 F.2d 150, 159 (5th Cir. 1961) (students have a right to present oral testimony or written affidavits of witnesses when facing expulsion).

[77]

See generally Samantha Harris & KC Johnson, Campus Courts in Court: The Rise in Judicial Involvement in Campus Sexual Misconduct Adjudications, 22 N.Y.U. J. LEGIS. & PUB. POL’Y 49 (2019) (compiling lawsuits against universities over alleged student due process violations).

[78]

California v. Green, 399 U.S. 149, 158 (1970).

[79]

See Maryland v. Craig, 497 U.S. 836, 846 (1990) (“[F]ace-to-face confrontation enhances the accuracy of factfinding by reducing the risk that a witness will wrongfully implicate an innocent person.”); Davis v. Alaska, 415 U.S. 308, 316 (1974) (“Cross-examination is the principal means by which the believability of a witness and the truth of his testimony are tested.”).

[80]

Winnick v. Manning, 460 F.2d 545, 550 (2d Cir. 1972) (finding a right to cross-examine witness when the hearing turns on witness credibility); Donohue v. Baker, 976 F. Supp. 136, 147 (N.D.N.Y. 1997) (accused student had a right to cross-examine alleged victim when the only evidence of alleged rape was victim’s testimony).

[81]

FED. R. EVId. 611.

[82]

Gideon v. Wainwright, 372 U.S. 335, 344 (1963).

[83]

Albert v. Carovano, 824 F.2d 1333, 1339 (2d Cir.) (finding that there is a stigma attached to suspension for disciplinary reasons), modified on reh’g, 839 F.2d 871 (2d Cir. 1987), on reh’g en banc, 851 F.2d 561 (2d Cir. 1988).

[84]

See Herring v. New York, 422 U.S. 853, 862 (1975) (“The very premise of our adversary system of criminal justice is that partisan advocacy on both sides of a case will best promote the ultimate objective that the guilty be convicted and the innocent go free.”).

[85]

Susan Riseling, the chief of police and associate vice chancellor at the University of Wisconsin-Madison, told the International Association of College Law Enforcement Administrators in 2015 that she was able to circumvent due process and secure a criminal conviction of a student by using his campus tribunal statements against him in his criminal trial. She told her audience, “It’s Title IX, not Miranda. Use what you can.” Jake New, Making Title IX Work, INSId. HIGHER ED (July 6, 2015), insidehighered.com/news/2015/07/06/college-law-enforcement-administrators-hear-approach-make-title-ix-more-effective.

[86]

See, e.g., Gabrilowitz v. Newman, 582 F.2d 100, 103 (1st Cir. 1978) (analyzing whether a state college student facing criminal charges and expulsion would effectively be compelled to testify during a disciplinary hearing); Hart v. Ferris State Coll., 557 F. Supp. 1379, 1385 (W.D. Mich. 1983) (applying the Fifth Amendment right against compelled self-incrimination to a state college student facing a disciplinary hearing and criminal charges).

[87]

Several states already guarantee Students the right to active assistance of counsel in certain circumstances. Ark. Code Ann. § 6-60-109 (appeals of 10-day suspension or expulsion rulings); N.C. Gen. Stat. Ann. § 116-40.11 (all proceedings except academic dishonesty and “Student Honor Court” violations); N.D. Cent. Code Ann. § 15-10-56 (all non-academic misconduct violations that could result in suspension or expulsion). Other states establish this right for students for all disciplinary procedures under their administrative procedures acts. Tenn. Code Ann. § 4-5-305; Or. Rev. Stat. Ann. § 183.417.

[88]

Donohue v. Baker, 976 F. Supp. 136, 145 (N.D.N.Y. 1997) (“It is well settled that an expulsion from college is a stigmatizing event which implicates a student’s protected liberty interest”).

[89]

See Gonzales v. McEuen, 435 F. Supp. 460, 471 (C.D. Cal. 1977) (“There is no question that a high school student who is punished by expulsion might well suffer more injury than one convicted of a criminal offense.”).

[90]

See Brown v. Bd. of Ed. of Topeka, 347 U.S. 483, 493 (1954) (emphasizing the “importance of education to our democratic society” as “[i]t is required in the performance of our most basic public responsibilities” and is “the very foundation of good citizenship”); Dixon v. Alabama State Bd. of Ed., 294 F.2d 150, 157 (5th Cir. 1961) (“It requires no argument to demonstrate that education is vital and, indeed, basic to civilized society. Without sufficient education the plaintiffs would not be able to earn an adequate livelihood, to enjoy life to the fullest, or to fulfill as completely as possible the duties and responsibilities of good citizens.”).

[91]

FIRE Comment, supra note 47, at 37–39.

[92]

Gorman v. Univ. of Rhode Island, 837 F.2d 7, 15 (1st Cir. 1988) (noting that several courts have required colleges to provId. a record of disciplinary proceedings).

[93]

See Furey v. Temple Univ., 884 F. Supp. 2d 223 (E.D. Pa. 2012) (finding the appeal failed to satisfy due process in part because the decision maker had an ex parte conversation with an eyewitness); Silva v. Univ. of New Hampshire, 888 F. Supp. 293 (D.N.H. 1994) (finding that the bias of the appeals board members violated the student’s due process rights).

[94]

Matter of Hyman v Cornell Univ., 918 N.Y.S.2d 226, 228 (N.Y. App. Div. 2011) (“When a university has not substantially complied with its own guidelines or its determination is not rationally based upon the evidence, the determination will be annulled as arbitrary and capricious …”); Furey, 884 F. Supp. at 258 (finding that the final decision-maker “was obligated under the Code to give presumptive weight to the Review Board’s finding” but did not, thereby compromising fundamental fairness).

[95]

Title IX Regulations, supra note 3, at § 106.45(b)(2)(B).

[96]

Title IX Regulations, supra note 3, at § 106.45(b)(3).

[97]

See Section VI.2 Mediation.

[98]

Title IX Regulations, supra note 3, at § 106.45(b)(5)(vi–vii).

[99]

Title IX Regulations, supra note 3, at § 106.45(b)(5)(vii).

[100]

Title IX Regulations, supra note 3, at § 106.45(b)(5)(vi–vii).

[101]

Title IX Regulations, supra note 3, at § 106.45(b)(5)(vi).

[102]

FIRE Comment, supra note 47, at 30-33 (discussing the importance of allowing the active participation of counsel in Title IX proceedings).

[103]

Id. at 35–36 (discussing how requiring universities to disclose all evidence, as opposed to only evidence they intend to use, protects due process by preventing institutional conflicts of interest).

[104]

20 U.S.C. 1681 (1976).

[105]

Title IX Regulations, supra note 3, at § 106.44(a).

[106]

See FIRE Comment, supra note 47, at 11–14.

[107]

New, supra note 94.

[108]

Title IX Regulations, supra note 3, at § 106.45(b)(1)(ii).

[109]

Title IX Regulations, supra note 3, at § 106.45(b)(5)(i).

[110]

Title IX Regulations, supra note 3, at § 106.45(b)(1)(iii).

[111]

Title IX Regulations, supra note 3, at § 106.45(b)(1)(v).

[112]

Title IX Regulations, supra note 3, at § 106.45(b)(9)(i).

[113]

Title IX Regulations, supra note 3, at § 106.45(b)(9)(ii).

[114]

FIRE Comment, supra note 47, at 41–44.

[115]

The College must publish on its website all training materials for individuals conducting Title IX proceedings. Title IX Regulations, supra note 3, § 106.45(b)(10)(i)(D).

[116]

Title IX Regulations, supra note 3, at § 106.45(b)(6)(i).

[117]

Title IX Regulations, supra note 3, at § 106.45(b)(6)(i).

[118]

Title IX Regulations, supra note 3, at § 106.45(b)(6)(i).

[119]

Title IX Regulations, supra note 3, at § 106.45(b)(6)(i).

[120]

Title IX Regulations, supra note 3, at § 106.45(b)(6)(i).

[121]

Title IX Regulations, supra note 3, at § 106.45(b)(6)(i).

[122]

Title IX Regulations, supra note 3, at § 106.45(b)(6)(i).

[123]

Title IX Regulations, supra note 3, at § 106.45(b)(6)(i–ii) (incorporating language from Federal Rules of Evidence rape shield provision).

[124]

Title IX Regulations, supra note 3, at § 106.45(b)(6)(i).

[125]

Title IX Regulations, supra note 3, at § 106.45(b)(6)(i).

[126]

Title IX Regulations, supra note 3, at § 106.45(b)(8).

[127]

Title IX Regulations, supra note 3, at § 106.45(b)(8).

[128]

See Section VII.4 Appeals.

[129]

See Title IX Regulations, supra note 3, at § 106.45(b)(1)(vii) and § 106.45(b)(7)(i) (allowing educational institutions to use the clear and convincing evidence standard for adjudicating alleged sexual misconduct under Title IX).

[130]

Title IX Regulations, supra note 3, at § 106.45(b)(7)(F).

[131]

Dep’t of Educ., Office for Civil Rights, Q&A on Campus Sexual Misconduct, Sept. 22, 2017, https://www2.ed.gov/about/offices/list/ocr/docs/qa-title-ix-201709.pdf (last visited Nov. 30, 2017)); see 20 U.S.C. § 1681 (1976); see also Jacob Gersen & Jeannie Suk, The Sex Bureaucracy, 104 CAL. L. REV. (2016) (discussing evolution of Title IX requirements).

[132]

See Stephen Henrick, A Hostile Environment for Student Defendants: Title IX and Sexual Assault on College Campuses, 40 N. KY. L. REV. 49, 81–82 (2013) (arguing that universities are severely ill-equipped to handle sexual misconduct cases).

[133]

See Picozzi, supra note 77, at 2141 (university administrators “fill all the roles of police (enforcing rules and identifying those who break them), prosecutor (deciding who should be charged for breaking the rules), judge (agreeing who should be charged for breaking the rules and deciding on factfinding procedures) and jury (deciding if the individual is guilty as charged)”).

[134]

See Coy v. Iowa, 487 U.S. 1012, 1024 (1988) (O’Connor, J., concurring) (the preference for face-to-face cross-examination may be overcome by competing interests in particular cases).

[135]

Title IX Regulations, supra note 3, at § 106.45(b)(5)(iv).

[136]

See FIRE Comment, supra note 47, at 30–33.

[137]

See Id. at 37–39.

[138]

See Id. at 37–38 (discussing how the clear and convincing evidence standard protects due process).

[139]

For Complainants, this includes the College’s dismissal of a formal complaint or any allegations therein. Title IX Regulations, supra note 3, at § 106.45(b)(8).

[140]

Title IX Regulations, supra note 3, at § 106.45(b)(8) (listing grounds for appeal).

[141]

Title IX Regulations, supra note 3, at § 106.45(b)(8).

[142]

See Doe v. Alger, 2016 U.S. Dist. LEXIS 178017, at *42 (W.D. Va. Dec. 23, 2016); Doe v. Rector & Visitors of George Mason Univ., 149 F. Supp. 3d 602 (E.D. Va. 2016) (discussing the many due process violations that can occur when the accuser is allowed to appeal, such as subjecting the accused to new charges on appeal, lack of notice of new charges, denial of a meaningful opportunity to be heard, and appellate panel bias or prejudice against the accused).

[143]

Ashe v. Swenson, 397 U.S. 436, 445–46 (1970) (“For whatever else that constitutional guarantee may embrace, it surely protects a man who has been acquitted from having to ‘run the gantlet’ a second time”) (internal citations omitted); see FIRE Comment, supra note 47, at 26–27 (describing issues with allowing complainants to appeal adverse rulings).

[144]

See, e.g., Wendy Kaminer, What’s Wrong With the Violence Against Women Act, THE ATLANTIC (Mar. 19, 2012), theatlantic.com/national/archive/2012/03/whats-wrong-with-the-violence-against-women-act/254678 (“[Y]ou’d have to regard the protection against double jeopardy as a mere constitutional technicality to believe that schools should dispense with it. Or you’d have to assume that, as a general rule, fairness requires convictions and provides multiple opportunities to obtain them.”).

[145]

Hassan v. Lubbock Indep. Sch. Dist., 55 F.3d 1075, 1081 (5th Cir. 1995).

[146]

952 N.Y.S.2d 147, 155–56 (N.Y. App. Div. 2012) (finding that relative severity of expulsion “shock[ed] one’s sense of fairness”) (internal citations omitted), aff’d as modified on other grounds, 25 N.Y.3d 942 (2015).

[147]

Id. at 156. (noting the amount of money plaintiff had expended on her education).

[148]

Id.

[149]

Id. at 157 (“Further, the punishment that NYU meted out to petitioner is allegedly harsher than the punishment it has given to similarly situated students.”).

[150]

Corder v. Lewis Palmer Sch. Dist. No. 38, 566 F.3d 1219, 1231 (10th Cir. 2009).

[151]

Cf. Kicklighter v. Evans County Sch. Dist., 968 F. Supp. 712, 720 (S.D. Ga. 1997) (allowing mandatory apology but clearly noting that this finding was grounded in the fact that “children in a public school” do not have the same free speech rights as adults) (quoting Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675, 682 (1986)).

[152]

See 29 U.S.C. § 106 (1931).

[153]

See NAACP v. Claiborne Hardware Co., 458 U.S. 886, 932 (1982) (“[G]uilt by association is a philosophy alien to the traditions of a free society and the First Amendment itself … .”) (internal citations omitted).

[154]

20 U.S.C. § 1232g (2013); 34 C.F.R. § 99 (2019).

[155]

See 34 C.F.R. § 99.36 (2019) (describing the conditions that apply to the disclosure of information in health and safety emergencies under FERPA).

[156]

Title IX Regulations, supra note 3, at § 106.71(a).

[157]

See generally U.S. DEP’T OF EDUC., FERPA GENERAL GUIDANCE FOR STUDENTS (2011), available at www2.ed.gov/policy/gen/guid/fpco/ferpa/students.html.

[158]

20 U.S.C. § 1232g (2013) (FERPA); 20 U.S.C. § 1092(f) (2013) (Clery Act).