Colleges and universities are under pressure from all sides to ensure that their policies and procedures for investigating and adjudicating complaints of sexual assault on campus are compliant with Title IX as well as basic notions of fairness and due process.

Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681 et seq., prohibits sex discrimination in any federally funded education program or activity. While perhaps best known for its application to collegiate sports, Title IX’s reach extends well beyond the stadium walls to prohibit sex discrimination of all types in federally funded educational institutions.

One of the hottest issues facing institutions of higher education across the nation is the prevalence of complaints of sexual assault on campus and what college administrators are required to do about it under Title IX. While much of the focus has been on satisfying the requirements promulgated by the United States Department of Justice, Civil Rights Division, and the United States Department of Education, Office for Civil Rights, for the handling of such complaints, colleges and universities are also feeling pressure from sources other than the federal government, including lawsuits from alleged perpetrators challenging the process for investigating and adjudicating complaints against them.

The latest in this string of lawsuits is detailed by Ben Seal of The Legal Intelligencer in an article published on September 26, 2016. In his article, entitled “UPenn Sued for ‘Unfair’ Sexual Assault Discipline Process”, Seal recounts a recent lawsuit filed by a male student identified under the pseudonym John Doe against the Trustees of the University of Pennsylvania. In the suit, filed in United States District Court for the Eastern District of Pennsylvania on September 23, 2016, Doe claims that he was the subject of a “sham investigation” by UPenn that resulted in a report from investigators recommending Doe’s expulsion. More specifically, Doe alleges inter alia that investigators misinterpreted and misapplied university policy by concluding that the alleged victim did not consent to the sexual encounter because she “never said ‘yes’” when the university’s policy defines “consent” to include consent by “words or actions.” Doe also argued that the report was not an “objective account” of the incident and that certain racial stereotypes factored into investigators’ conclusion that Doe (who is African American) was the aggressor.

This case, which is currently scheduled for a hearing on Doe’s motion to preliminarily enjoin the disciplinary process, will next be before the  court in Philadelphia on October 27, 2016. While the allegations against UPenn have yet to be proven in a court of law, the filing of this lawsuit – as well as many others like it across the nation – should serve as a reminder to institutions of higher education that Title IX investigations into complaints of sexual assault on campus must be done in a manner that does not contradict the lawful policies of the institution. Indeed, the quickest way to undermine the integrity of such an investigation is for the findings of the investigative team to be based on a misapplication of the established policies of the institution, particularly on the central issue of “consent” to a sexual encounter under the institution’s sexual violence policy.

This lawsuit should also serve as a reminder that like all investigations, Title IX investigations must be conducted free of investigator bias or other preconceived notions of student behavior that are not grounded in the facts of the case. Finally, this case should make it clear that an educational institution’s obligation of fairness is not limited to the alleged victim, but also the alleged perpetrator, particularly when the penalty to be imposed is expulsion from the institution.

More information to follow on this important case.

Christopher D. Carusone is a Partner in the Firm’s Harrisburg office, where he serves as Chair of the Firm’s Government Law & Regulatory Affairs and Energy & Utilities Groups, as well as Co-Chair of the Internal Investigations Group.