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Civil RightsAdvisor Trainingfor theTexas A&M University SystemRick Olshak, System Ethics and Compliance OfficeAugust 20201

Civil Rights Advisor TrainingNOTICE:This training material is provided for public review inaccordance with federal law. The material may be utilized onlyfor non-commercial educational and training purposes with theuser assuming all risk for utilization of any content herein.Commercial utilization of this material is prohibited.2

Civil Rights Advisor TrainingNOTICE:This is a training program designed for those who will serve asmember-appointed advisors to parties in cases involving sexbased allegations. A pre-requisite for this program iscompletion of the System Training on Title IX and SystemRegulation 08.01.01 which was offered on August 5, 2020through Webex as well as through TrainTraq.3

Civil Rights Advisor TrainingFor this training 1. Aubrey Craft of SECO will keep members muted throughout today’s training;questions may be asked in the “Chat” box; Aubrey will keep track of commentsand ensure they are asked during the program.2. If you have questions after the completion of this program, please direct thosequestions to your Title IX Coordinator (TIXC) by the end of the day tomorrow(Friday). We ask that the TIXCs collect and submit questions to Rick Olshak bythe end of next Monday so that SECO can issue any necessary guidance to allSystem members.3. TrainTraq: We will follow up with members on completing the post-test viaTrainTraq once this material is posted; this will include the opportunity for peopleto complete the program who are unable to attend today.4

Civil Rights Advisor TrainingFor this training 4. Presentation is text heavy and intended to serve as a reference document afterthe training5. The presenter is not providing legal advice; the presenter is a compliance officerand is offering compliance guidance6. Please note that the material being addressed in this program may involveexplicit descriptions or details that some may find offensive, while others mayfind these materials triggering. Nothing is being done today simply for “shockvalue” but will be consistent with the real-world language and details that we areconfronted with in this work. If you find yourself triggered, please step away tothe degree that you need to, and please seek appropriate assistance ifnecessary.5

Civil Rights Advisor TrainingPOLL:Did you attend our four-part training program for civil rightsadjudicators? Yes or No (please vote now)Vote “yes” if you attended any/all of the training.6

Civil Rights Advisor TrainingPOLL:Have you ever served as an official (single hearing officer ormember of a hearing panel) in any live disciplinary hearinginvolving student or employee conduct? Yes or No (pleasevote now)Vote “no” if you have only served as a Designated Administrator in paper reviews.7

Civil Rights Advisor TrainingAgenda1. Pre-Test2. The Advisora) Due Process in Higher Educationb) The Civil Rights Adjudication Process (overview)c) The Role of the Advisori.ii.Process AdvisorsHearing-only Advisorsd) Effective Questioninge) Records and Privacy3. Revisit Pre-Test4. Final Questions8

Civil Rights Advisor TrainingPre-TestHere are 8 questions that we will address today through the material. These questions will also serve asyour post-test.1.True or False – The role of the adjudicatory process is to prove that the respondent violated ourstandards and to punish them for their offenses.2.Choose One – Which standard of evidence has been used by approximately 90% of colleges anduniversities as the standard for all student conduct cases for the last fifty-plus (50 ) years?a) Beyond a Reasonable Doubtb) Clear and Convincingc) Preponderance of the Evidenced) Substantial Evidence3.Choose One – Which court decision is understood to be the landmark case for student conduct thateffectively ended in loco parentis?a) Brown v. Board of Education (1954, U.S. Supreme Court)b) Dixon v. Alabama (1961, 5th Circuit)c) Goss v. Lopez (1975, U.S. Supreme Court)d) Davis v. Monroe County Board of Education (1999, U.S. Supreme Court)9

Civil Rights Advisor TrainingPre-TestHere are 8 questions that we will address today through the material. These questions will also serve asyour post-test.4.True or False – In sex-based cases, the role of the advisor is to advocate on behalf of their adviseeand represent them at the live hearing.5.Choose One – In the event that a party fails to appear at a scheduled live hearing, what previouslysubmitted statements may be included in the decision-making of the hearing officer or hearingpanel?a) Only their previous statements to policeb) Only their previous statements to civil rights investigatorsc) Only their previous statements to the Title IX Coordinatord) None of the above6.Yes or No – John is a party and has answered twenty-three questions from the opposing advisor.However John refuses to answer the twenty-fourth question. The panel chair warns John that if herefuses to answer, all of his previous statements – including those made at the hearing – will bedeemed inadmissible. John still refuses to answer and the chair declares John’s statements to be nolonger relevant to the case. Did the chair make the correct decision?10

Civil Rights Advisor TrainingPre-TestHere are 8 questions that we will address today through the material. These questions will also serve asyour post-test.7.Yes or No – Kimberly is a witness who appears at the hearing and refuses to answer any questionsfrom the panel, but answers questions from both party advisors. The chair tells the panel thatKimberly’s statements may be considered in deliberations. Did the chair make the correct decision?8.Choose One – You are an advisor to a party. It is time for the opposing advisor to ask questions ofyour advisee. The Chair rules a question admissible and directs your advisee to answer it. You donot like the question and believe the answer may undermine your advisee’s case. What do you do?1. Do nothing and allow the advisee to answer the question2. Object to the Chair of the Hearing Panel3. Whisper to the advisee that they should say, “Upon advice of my Advisor, I refuse to answerthis question”4. Demand an immediate recess so that you and your advisee can strategize11

Civil Rights Advisor TrainingDue Process in Higher Education (students)12

Civil Rights Advisor TrainingDue Process in Higher Education (students)Due ProcessWho has authority over you how many jurisdictions do youlive in? (POLL)- International Law- Federal Law- State Law- County/Municipalities- Professional- Personal13

Civil Rights Advisor TrainingDue Process in Higher Education (students)Due ProcessDo all of these jurisdictions provide the same due processelements if there is a conflict? (POLL)NO --- they do not, but why not?14

Civil Rights Advisor TrainingDue Process in Higher Education (students)Due ProcessDue process is the process that is due to us based on: The nature of the relationship The rights or privileges at stakeThe greater the potential loss of rights, the higher amount ofprocess that is due.15

Civil Rights Advisor TrainingDue Process in Higher Education (students) President James Madison (Dem-Rep., 4th President) Authored the 5th Amendment to the U.S. Constitution; ratified in 1791 5th Amendment requires due process of law in order for the government to deprivean individual of life, liberty, or property 5th Am. prohibits self-incrimination and double jeopardy in criminalproceedings 5th Amendment protections date back to the Magna Carta (1215) Senator Jacob Howard (Rep., Michigan) Worked closely with President Lincoln on passage of 13th Amendment to abolish slaveryServed on Joint Committee on ReconstructionDrafted the 14th Amendment, which requires equal protection under the law for all personsborn or naturalized in the United States; ratified in 1868Reversed (USSC) Dred Scott decision that black persons were not citizensDue process clause guarantees substantive and procedural process in state legal proceedings(14th Amendment is primary source of due process in higher education)Privileges or Immunities Clause protects individual state citizenship from interferenceby other states16

Civil Rights Advisor TrainingDue Process in Higher Education (students)Dixon v. Alabama (1961, 5th Circuit) School expelled six students for unspecified reasons without a hearing after thosestudents participated in a civil rights demonstration Circuit Court held that minimal due process (notice and hearing) was required or theexpulsion of a student Ended legal relationship of in loco parentis (THE landmark case)17

Civil Rights Advisor TrainingDue Process in Higher Education (students)Esteban v. Central Missouri State College (1969, 8th Circuit) School suspended two students for participation in civil rights demonstrationsBoth students in attendance, but claimed to be spectatorsEsteban refused order to return to his roomStudents sued in 8th CircuitCourt required a second hearing with adequate procedural due process, including:written notice of charges; students permitted to review all materials to be used at thehearing in advance; allowed advisement; students allowed to present own stories,exhibits, and witnesses; decision to be based only on facts in evidence; and recordingof the hearing could be made by either side After second hearing resulted in suspensions, court refused to intervene sinceprocedural due process had been provided18

Civil Rights Advisor TrainingDue Process in Higher Education (students)Goss v. Lopez (1975, USSC) Nine students suspended from a public high school for ten days for destruction ofproperty Ohio law allowed this sanction without a hearing USSC determined that a suspension without a hearing violated 14th Amendment DueProcess Clause19

Civil Rights Advisor TrainingDue Process in Higher Education (students)1968 General Order on Judicial Standards of Procedure and Substancein Review of Student Discipline in Tax Supported Institutions of HigherEducation Issued by a local group of judges in the Western District of Missouriand included Harry Blackmun, who served as an Associate Justice onthe USSC from 1970 to 1994 Group of judges issued strong statements about distinctions in dueprocess between criminal justice system and higher education; theirobservations have stood the test of time20

Civil Rights Advisor TrainingDue Process in Higher Education (students)1968 General Order – key quotes:“[S]chool regulations are not to be measured by the standards which prevail for criminallaw and for criminal procedure.”21

Civil Rights Advisor TrainingDue Process in Higher Education (students)General Order – key quotes:“The discipline of students in the educational community is, in all but the case ofirrevocable expulsion, a part of the teaching process. In the case of irrevocable expulsionfor misconduct, the process is not punitive or deterrent in the criminal law sense, but theprocess is rather the determination that the student is unqualified to continue as a memberof the educational community. Even then, the disciplinary processes not equivalent to thecriminal law processes of federal and state criminal law. For, while the expelled studentmay suffer damaging effects, sometimes irreparable, to his educational, social, andeconomic future, he or she may not be imprisoned, fined, disenfranchised, or subjected toprobationary supervision. The attempted analogy of student discipline to criminalproceedings against adults and juveniles is not sound.”22

Civil Rights Advisor TrainingDue Process in Higher Education (students)1968 General Order – key quotes:“In the lesser disciplinary procedures, including but not limited to guidance counseling,reprimand, suspension of social or academic privileges, probation, restriction to campusand dismissal with leave to apply for readmission, the lawful aim of discipline maybeteaching in performance of a lawful mission of the institution. The nature and procedures ofthe disciplinary process in such cases should not be required to conform to federalprocesses of criminal law, which are far from perfect, and designed for circumstances andends unrelated to the academic community. By judicial mandate to impose upon theacademic community in student discipline the intricate, time consuming, sophisticatedprocedures, rules and safeguards of criminal law would frustrate the teaching process andrender the institutional control impotent.”23

Civil Rights Advisor TrainingDue Process in Higher Education (students)Can we impose the death penalty on our community members? NOCan we imprison our community members?NOCan we deprive our community members of substantial property?Is there a right to a higher education? (Implicit – Yes, Explicit – No)Separate rights from privileges Once we extend a privilege, revoking it may require due process, mostespecially when we are altering the relationship between the individualand the institution24

Civil Rights Advisor TrainingDue Process in Higher Education (students)In general, minimum due process includes: Notice of Allegations/Charges Right to a hearing prior to suspension/expulsion Opportunity to see and respond (challenge) to information/evidence Attendance of an Advisor (VAWA, Title IX) Students allowed to make their own statements, as well as submit evidence and witnessesDue process does not include: Representation by advisor; advisor limited to role established by the institution (except to askquestions in Title IX live hearings) Use of “beyond a reasonable doubt” standard; about 90% of colleges and universities have beenusing a preponderance test for all student cases dating back to the 1960s Deferral to criminal process where there is a concurrent criminal investigation or where concurrentcriminal charges are pending “Presumption of Innocence” (Title IX only – responsibility) Right of Appeal (Title IX onl