��֭����

The University of Virginia’s Honor Committee, a group of students elected to enforce the university’s Honor Code, recently adopted addressing how the Committee will respond to allegations of lying that arise from cases adjudicated under the university’s Title IX policy.  

Unfortunately, the language they ultimately adopted creates a form of double jeopardy that poses a serious threat to the rights of the accused.

The Committee was clearly trying, in good faith, to balance a number of competing interests when considering the language of the bylaw. Unfortunately, the language they ultimately adopted creates a form of double jeopardy that poses a serious threat to the rights of the accused.

The debate began in December, when a student published in the student-run Virginia Review of Politics highlighting what she called “a judiciary pothole” into which “lies vanish” at UVa: The university’s Title IX policy provides that lying during a Title IX proceeding is “subject to disciplinary sanctions under the University’s honor code,” but the Honor Committee had no parallel policy to deal with cases arising from Title IX adjudications. Therefore, there was no actual mechanism in place to sanction students who lie during Title IX proceedings. 

The article recounted the story of a UVa student named Katherine, who believed that the student she accused of sexual assault had lied to the Title IX investigator during the proceedings conducted under the university’s Title IX policy. Katherine submitted additional evidence to the investigator that she believed discredited the respondent’s testimony, but “Title IX favored [the respondent’s] version of events to hers and recommended a finding of nonresponsibility in the Final Report.” Katherine then reported the respondent to the Honor Committee for allegedly lying, but the Committee did not take jurisdiction of her case, citing the fact that the case involved Title IX issues that were out of the Committee’s scope to consider.

In January, UVa’s student newspaper The Cavalier Daily that the Honor Committee was considering a bylaw to close that loophole. From the beginning, the Committee was aware of the potential double-jeopardy concerns. The Committee’s Vice Chair for Hearings Alex Spratley told the Daily that “[w]e are not here to act as an appeal to Title IX.” The Committee’s plan, according to the Daily, was to coordinate with the university’s Title IX office “to ensure that Honor’s hearing the case would not constitute a re-adjudication of the initial case.” 

On Feb. 2, the Honor Committee on a bylaw to address this issue. The first section of this bylaw : 

The Honor Committee will dismiss any report of an alleged Honor Offense when, in the discretion of the University’s Title IX Coordinator ... the conduct alleged in the Honor report was previously adjudicated pursuant to the University’s Policy on Sexual and Gender-Based Harassment and Other Forms of Interpersonal Violence.

Pursuant to the policy, the Title IX Coordinator will deem conduct to have been previously adjudicated “when the allegations made in the Honor report arise from testimony or other evidence relevant to, and considered in the course of, an investigation and Formal Resolution” of a Title IX complaint.

This part of the new policy is unproblematic. There could be issues that arise during a Title IX proceeding that were immaterial to the outcome of the case, and thus not adjudicated, but that still constitute Honor Code violations — for example, , “if an accused party admitted to stealing a bike and that fact was not relevant to the Title IX investigation.”

If that were the end of the policy, it would not be problematic. Unfortunately, the Committee also adopted into the new bylaw (emphasis added):

Notwithstanding the foregoing, the Executive Committee, by unanimous vote, may override the Title IX Coordinator’s decision if it determines that such decision represents a fundamental misapplication of the description of “previous adjudication” as set forth above.

This creates the potential for something akin to double jeopardy (really, triple jeopardy, since the Office for Civil Rights already requires universities that offer an appeal process in Title IX cases to allow appeals from both complainants and respondents). For the same reasons of fundamental fairness that our criminal justice system does not allow those accused of crimes to face double jeopardy, colleges and universities should not force their students to face multiple hearings for what is effectively the same charge.

And while the override option, by its plain language, may sound like a failsafe option that would be used only in extreme circumstances, in reality the Honor Committee is likely to come under a tremendous amount of pressure to override the Title IX Coordinator and effectively re-hear sexual misconduct cases. To see why FIREis concerned, one need only look at the way universities have responded to similar pressures in Title IX cases around the country. See, e.g., Feibleman v. Trustees of Columbia University, No. 1:19-cv-04327 (S.D.N.Y. Feb. 24, 2020) (holding that allegations of contemporaneous government pressure and negative media publicity provide “a plausible motivation on the part of Columbia to discriminate against male students accused of sexual assault”); Doe v. Syracuse University, No. 5:19-cv-00190 (N.D.N.Y. Feb. 21, 2020) (denying university’s motion to dismiss and holding that “Plaintiff has alleged specific facts in support of his assertion that there was a pressure campaign that resulted in Syracuse deciding to make Plaintiff ‘an example of Title IX enforcement’”); Doe v. Rhodes College, No. 2:19-cv-02336 (W.D. Tenn. June 13, 2019) (enjoining college from enforcing its expulsion of an accused student and noting that “public attention caused by the protests and social media posts …  may have put pressure on Defendant to confirm that it took sexual misconduct allegations seriously.”)

Based on the reporting in the Daily, it seems as though the Honor Committee adopted this bylaw in a good-faith effort to eliminate uncertainty about how students might be sanctioned for Honor Code violations that occur in the course of Title IX proceedings. But the override provision they ultimately adopted threatens the fundamental rights of students accused of very serious wrongdoing, and in the interest of due process and fundamental fairness, the Committee should reconsider it.