From: <Wilson>, Christopher <christopher.s.wilson@ndus.

edu>
Date: Wednesday, April 1, 2015 3:50 PM
To: Murray Sagsveen <murray.sagsveen@ndus.edu>
Subject: RE: SB2150 - new marked up bill
Murray,
There are two significant concerns with the House version of the engrossed bill:
1. Appeal process
The House bill does not include language that allows for institutions to use their
current appeal process before utilizing the one-year appeal process outlined in
SB2150. Discussion drafts (created by legislative council) previously included
language which expressly permitted the institutions to use those immediate
appeals prior to utilizing the one-year appeal. This is important because the
institutions do not impose suspensions or expulsions until after those initial
appeals have been denied or the time period has expired. Right now, both
NDSU and UND allow for two levels of immediate appeal after the initial hearing.
An argument could be made that the current version of SB2150 does not allow
for any institutional appeals other than the one-year appeal. Institutions would
have to immediately impose the suspension or expulsion without any internal
appeals pending the one-year appeal process. If that is what the legislature
intended then the legislature has reduced the amount of due process offered to
students.
2. Examination of witnesses
The House bill expressly allows for an attorney who is representing one of the
parties to directly question witnesses. This is outside of common practice within
national higher education judicial models and against the strong recommendation
of the Office of Civil Rights of the U.S. Department of Education (the OCR) for
Title IX cases. Specifically, the OCR wrote the following:
OCR strongly discourages schools from allowing the parties personally to
question or cross-examine each other during the hearing. Allowing an
alleged perpetrator to question an alleged victim directly may be traumatic
or intimidating, thereby possibly escalating or perpetuating a hostile
environment.
This issue was discussed during the testimony on SB2150 in the House, and
members indicated that students would not be questioning each other if an
attorney did the questioning. However, this creates an unequal due process
situation if the perpetrator has an attorney and the victim does not (or vice
versa). In that case, the perpetrator would be allowed to directly question
witnesses through the attorney, but the victim would have to direct his/her
questions through the hearing officer or conduct board. This disparate treatment
would run afoul of Title IX because OCR indicates that:

OCR does not require schools to permit parties to have lawyers at any
stage of the proceedings, if a school chooses to allow the parties to have
their lawyers participate in the proceedings, it must do so equally for both
parties. Additionally, any school-imposed restrictions on the ability of
lawyers to speak or otherwise participate in the proceedings should apply
equally.
If one of the parties cannot afford an attorney, then the only way to treat the
parties equally is to have the institution violate the strong recommendation of the
OCR and permit the non-represented student to directly question witnesses or for
the institution to pay for an attorney to represent the party who is unrepresented.
Moreover, because this bill incentives students to hire attorneys in order to take
advantage of the increased due process, it is likely that additional attorneys will
need to become involved (i.e., to represent the victims, institution, conduct board,
etc.). The resulting situation will be more legalistic and expensive than is
required by current federal due process standards for higher education judicial
hearings.
I would also point out that subjecting victims to cross-examination in student
hearings could have a chilling effect on victims willingness to come forward to
report incidents. This has the double impact of preventing the institutions from
letting victims become aware of the various services they offer and preventing
institutions from identifying potential repeat offenders.
Christopher S. Wilson
General Counsel - Fargo
NORTH DAKOTA UNIVERSITY SYSTEM
NDSU Dept. 1020, PO Box 6050
Fargo, ND 58108-6050
p: 701.231.7215
f. 701.231.6358

www.ndus.edu