Making Sexual-Assault Hearings Fair

In 2015, at the conclusion of a four-year federal investigation, the University of Virginia had to face some hard facts.

The institution had at times failed to resolve sexual-assault complaints “promptly and equitably,” according to the U.S. Department of Education’s Office for Civil Rights, and the “basis” for a hostile environment had existed. Therefore, UVa had violated the gender-equity law known as Title IX.

Investigators cited a range of problems with the university’s handling of sexual misconduct. Chief among them: the hearing panel of administrators, professors, and students that decided many of the cases.

The UVa administrator who selected the panelists and oversaw the hearing played a half-dozen roles in the disciplinary process, creating the appearance of a conflict of interest, the civil-rights office found. Moreover, the panelists had no training in how to understand medical or forensic evidence, such as rape kits and drug or alcohol tests.

Improving Title IX Panels

Colleges continue to look for ways to make their Title IX hearings fairer. Here’s how colleges are rethinking the boards that often decide sexual-assault cases.

• Whom to Look for in a Title IX Hearing Panel

As part of its resolution agreement with the civil-rights office, UVa officials overhauled many aspects of its sexual-assault policies — including the hearing panel. The revised procedures, according to the top civil-rights official at the time, were “exemplary.” Today, UVa’s hearing panel looks different and has different responsibilities. It’s held up by many risk-management experts as a model.

Of course, not every college has the resources and staffing to do what a public flagship institution does. But there’s no question that as the issue of campus sexual assault continues to face widespread scrutiny, and as lawsuits claim that the hearing panels are biased and their members poorly trained, administrators are thinking more carefully about who makes the decisions.

There isn’t one ideal standard that all colleges should embrace, most experts say. But here’s how UVa and several other colleges are trying to make these embattled, mostly volunteer panels fairer, by reconsidering who should sit on them and what training they should receive.

A sexual-assault hearing panel made up of members of the campus community remains an important part of UVa’s disciplinary process, says Catherine Criswell Spear, associate vice president in UVa’s Office of Equal Opportunity and Civil Rights. The panelists consistently test one another, she says, and push back on individual viewpoints.

But it’s now called the “review panel,” and it plays a reduced role. One of the university’s full-time Title IX investigators first writes a report on whether the accused student did commit a sexual assault.

If a student disputes the finding, the review panel comes in and essentially votes up or down on the report. Panelists can question witnesses and consider evidence, but they rely more on the professional investigator’s work. If the investigator concludes that the accused student violated campus policy, and neither the accused nor the accuser challenges the finding, then the panel will hold a shorter hearing to determine a punishment.

The hearing-panel chair who runs the proceedings is no longer a university employee; the role is filled by an outside lawyer.

Another major shift at UVa is that there are no longer student panelists. Campus feedback, Ms. Spear says, indicated that “students don’t necessarily want their peers serving on these panels.”

The pool of panelists now includes 40 to 50 faculty and staff members, three of whom are chosen for each hearing. Title IX officers oversee the selection process and vet potential candidates. Deans, department chairs, and others help identify people who could serve on the panels, says Emily Babb, assistant vice president for Title IX compliance and the Title IX coordinator. (On some other campuses, like Cornell University, people can apply to become part of the hearing boards.)

What kinds of people are UVa officials looking for? “Neutral and open-minded” and across a range of departments and administrative units, Ms. Spear says. “We aren’t looking for people with an advocacy background.”

In the 2016-17 academic year, Title IX review panels were convened 18 times.

Panelists go through annual training, which is done by Ms. Spear and Ms. Babb, that covers institutional policies and the nuts and bolts of running a fair proceeding. “We spend a lot of time with our hearing panelists going over what their role in the process is,” Ms. Babb says. “They are not the investigator.”

They also attend refresher training sessions from time to time and meet with trauma counselors, who teach them how to sensitively work with sexual-assault victims.

Many panelists are driven to serve because they want to hold people accountable and ensure that serious misconduct has meaningful consequences, Ms. Spear says. But they have to make tough decisions in high-stakes situations.

Before and after hearings, Title IX officials at UVa sit down with the panelists, offer them guidance, and provide a space for them to talk about how they’re feeling. It’s important, Ms. Spear says, “to recognize the emotional toll that being involved in these cases can take.”

Officials at the University of Wisconsin at Whitewater have talked with colleagues on other campuses who question whether it makes sense for students to help decide sexual-assault cases. But they’ve never considered removing students from their hearing panels.

The people who can most directly understand the experiences of the students making their case — specifically, how young people communicate in this day and age, and the ways that alcohol, drugs, and sex intersect — are students themselves, says Artanya M. Wesley, dean of students.

When student-affairs administrators meet before a hearing with the parties involved in a misconduct case, one of the things both accuser and accused usually ask is whether students are on the panel, Ms. Wesley says. It’s something that Whitewater students want.

(Some institutions used to have panels made up entirely of students, but that model became less popular after the Obama administration issued guidance discouraging having students serve. Though the guidance was withdrawn last year, most colleges haven’t substantively changed their policies.)

Whitewater’s hearing boards usually have five members: two students and three professors or administrators. Students can’t make up the majority of the panel. Half of the pool of potential panelists is made up of representatives from the Faculty Senate, Academic Staff Assembly, and student government; the other half are appointed by student-affairs officers. The hearing chair is usually a faculty or staff member from that pool.

The time commitment can be a concern for people who consider volunteering. But as a public regional campus with about 11,000 undergraduates, Whitewater holds fewer hearings than larger colleges, so the commitment isn’t as significant as elsewhere, says Paige Smith, chief of institutional policy and compliance and Title IX coordinator. No sexual-misconduct cases have gone to a hearing in the past three academic years, she notes.

Panelists are trained in the Wisconsin system’s conduct code, which is written into state law. They also complete an annual course on sexual assault and sexual misconduct, developed by system lawyers.

While hearing-board members have always learned about the definitions of sexual misconduct and related terms, Ms. Smith says, there’s now more education on the nuances of consent and on trauma-informed questioning — which covers how sexual violence can affect, among other things, a victim’s ability to recall facts in chronological order.

If one or both of the students brings a lawyer as an adviser, Ms. Smith adds, a university-system lawyer will usually be assigned to the hearing panel as well. “Panels were concerned about being overwhelmed with legal processes and lawyers taking over the proceedings,” she says, “rather than allowing it to be an educational process.”

More colleges face lawsuits over their disciplinary processes, particularly from students accused of sexual misconduct who argue that an inexperienced conduct board bungled the hearing.

Some colleges make sure that someone with a legal background is in the hearing room to answer questions from the panel in real time. Others tap a lawyer to serve on the panel, alongside members of the campus community.

But a few institutions are moving away from panels of campus employees and students altogether. Instead they’re enlisting retired judges to serve as a “hearing panel of one.”

Vassar College replaced its faculty-and-staff hearing panels with a retired judge in 2015, says Rachel Pereira, director of equal opportunity and affirmative action. Many of the panelists didn’t feel equipped to handle sexual-assault cases, says Ms. Pereira, who’s also the Title IX officer.

“If my full-time job is being a physics professor, understanding the nuances of sexual assault and the impact of sexual assault or what it’s like to be an accused person — that’s just not in your wheelhouse,” she says. “You can sit through a six-hour training one day in the summer, but when you have the case in front of you, it’s just a different kind of animal.”

Vassar also wanted to ensure that its sexual-assault hearings were run by someone with a deep understanding of due process.

It’s not just about the judges’ expertise, though. At small institutions like Vassar, which has 2,400 students, paying a retired judge can also be the most practical option. The pool of potential panelists is limited already — and once you eliminate people who might know one of the students involved, the pool shrinks even more. It’s also more likely on a small campus that the paths of those at a hearing will cross later on.

Other small colleges band together. Amherst College has an all-administrator hearing panel, but none of them can be Amherst employees. Panelists come from the other campuses within the Five College Consortium: Mount Holyoke, Smith, and Hampshire colleges and the University of Massachusetts at Amherst.

Cash-strapped institutions often have to get creative. One college that couldn’t find anyone to serve on its hearing panel tapped a campus librarian to run the hearing.

There’s no gold standard for hearing panels. Perspectives among colleges and Title IX experts differ on what a hearing panel should be responsible for, who should be on it, and what kind of training is best.

The most important thing, Ms. Pereira says, is to ensure that all of the students involved feel that they’ve been listened to. No matter what the outcome in sexual-assault cases, someone is going to win and someone is going to lose, she says — and even if you technically win, you’ve still had to go through an intensely taxing experience.

“Our hope,” she says, “is that this process provides everyone with the satisfaction that they were able to share their perspective.”

Sarah Brown writes about a range of higher-education topics, including sexual assault, race on campus, and Greek life. Follow her on Twitter @Brown_e_Points, or email her at sarah.brown@chronicle.com.