Due Process for Whom?: Evaluation of Sexual Misconduct Policies at Institutions of Higher Education From the Lens of the Respondent
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Critics of the implementation of Title IX at institutions of higher education (IHEs) argue that due process in the investigation and adjudication of sexual misconduct is severely lacking. In response, the Office for Civil Rights proposed amended regulations in November 2018 that require a greater focus on the due process rights of the accused (the Respondent) at IHEs. The present study sought to examine the content of Title IX policies from the perspective of the Respondent, asking (1) to what extent do policies provide due process to Respondents as measured through the frequency of inclusion of words and/or phrases comprising six due process themes; and (2) in examining these policies, are there differences in due process provided when policies are categorized by institution size or federal appellate jurisdiction? A coding instrument was developed for a content analysis of institutional Title IX policies in consideration of the six themes: proper notice, the right to an advisor, the opportunity to be heard, the right of confrontation, the right to appeal, and the need for impartiality and fairness. Determination of the sample was through use of homogenous non probability sampling of an entire population that included all IHEs that met seven criteria. The 238 policies were accessed via institutional websites and were hand-coded with multiple checks on inter-rater reliability. The resulting nominal data was analyzed using descriptive statistics to identify patterns in the text. The findings indicate that the current state of due process in regard to most sample policies is on par with expectations in many areas, such as the provision of multiple aspects of proper notice to the Respondent and to the campus community, the ability to have an advisor and to be heard in one’s own defense, the right to review information gathered by the investigator(s), the right to appeal, and numerous characteristics of impartiality and fairness. However, there remain pockets of inadequacies from the perspective of a Respondent, including the lack of advisor participation, the submission of anonymous or confidential complaints, the lack of amnesty for Respondents, and the charged terminology used within the policies themselves.
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Introduction -- Literature review -- Methodology -- Results -- Discussion and implications -- Epilogue -- Appendix A. Prior content analysis -- Appendix B. Additional definitions -- Appendix C. Coding instrument -- Appendix D. List of institutions of higher education
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Ed.D. (Doctor of Education)