Can my School Withdraw my Degree for a Title IX or Sexual Misconduct Allegation made against me either After Graduating or Before Enrolling?
Yes. A college or university can withdraw a degree. It can delay the granting of this degree. It can suspend the degree for a number of years. Why can schools do these things? Well, consider the asymmetry that allows for this: A whole administration (of adults) against a single student (who is likely young, male, and heterosexual). Also consider that one reason you went to that school inherently assumes you wanted that school to certify you as a graduate, as a good person, and that a school prosecuting sexual misconduct likely will not think of the respondent as worthy of that certification. (1) And while Colleges or universities may seem like paper tigers once the aggrieved student brings them into Court, in the meantime, the relationship is unfair, and consists of just the school staff and the student. In that power vacuum, the staff has plenty of opportunity to completely ruin the student’s life. Yet, if the school revokes a student’s degree, or if the school somehow causes the degree to not issue, several legal options exist to closely examine, and hopefully challenge, the reasons for that revocation. (2).
U.S. Lawyers representing students facing a revoked degree have an uphill environment where Colleges and universities receive an unusually lax treatment from the Courts—for one thing the Courts grant deference to what happens inside the campus on a long-recognized and perhaps obtuse notion of “academic freedom” (3), for another, schools have wide discretion to run themselves just as any other business would. That means schools get away with a lot and perhaps in the same manner as other opaque institutions like the church and the army do. It is no coincidence that the standard to prove that a school violated a sexual assault victim’s rights under Title IX—deliberate indifference—is higher and exactly the one applied to a prison warden (yet another opaque institution) (4) instead of, for example, using a normal negligence standard, like the one applied to prove that a drunk driver caused a car crash because of inebriation.
A college or university may and will withdraw, revoke, or suspend a degree for a number of reasons that lie along a legitimacy spectrum. The veracity of the withdrawal’s facts trigger different legal remedies according to the public or private nature of school, the kind of reason including academic (5) or non-academic misconduct (6), and the time of the misconduct, consisting of pre-enrollment actions, actions during enrollment including after finishing the coursework (7), actions that fell either after the graduation date, or actions that involve a non-student—the horroris causa situation that triggered an enormous number of schools to withdraw the honoris causa degrees they had happily awarded to Bill Cosby (8).
In terms of non-academic student misconduct, Title IX-driven tools to prevent a school from suspending, withdrawing, or revoking a degree exist. (9). Deployment of these tools most likely involves lawyering-up as the situation is fact-sensitive and requires skilled argument from new laws and cases that grow every day. (10). For Title IX, the timing of the sexual misconduct as well as the good faith in disclosing or denying the allegations will matter in forming the argument. Failure to disclose at any point, however, can haunt the student for life. (11). For Title IX sexual misconduct that may have taken place before enrollment, good faith disclosure provides a reasonable expectation that the school has considered the situation and certainly found the student fit for enrollment. (12). Otherwise, if the student does not disclose the school will say he lied in his application which could lead to degree withdrawal. For Title IX sexual misconduct that may have taken place during enrollment, basically the main cohort of Title IX reverse-discrimination cases, the student’s denial story, confrontation, and the school’s male bias will determine the outcome. (13). For Title IX sexual misconduct that, more controversially, occurs after course completion, the school still has jurisdiction (14) and will take away the degree. The question of post-graduation degree revocation is unsettled as, frankly, activism has not made inroads into revoking degrees of, for example, graduates facing allegations of long ago sexual harassment, as it has, for example, with firing media personalities like Matt Lauer and some 217 others who face sexual assault allegations that are several years old. (15).
Raul Jauregui
I am an attorney and I defend mostly respondents of sexual misconduct in colleges or universities. This is absolutely not my legal opinion or my legal advice, but rather survey of the Title IX topic. If you’re in this situation, in any way, consult a lawyer now.
As posted in Quora:
ENDNOTES:
(1) In Waliga v. Board of Trustees of Kent State University, 22 Ohio St.3d 55, 488 N.E.2d 850, 852-53 (1986), the Ohio Supreme Court reasoned that certification matters:
“Academic degrees are a university's certification to the world at large of the recipient's educational achievement and fulfillment of the institution's standards. To hold that a university may never withdraw a degree effectively requires the university to continue making a false certification to the public at large of the accomplishment of persons who in fact lack the very qualifications that are certified.”
(2) See, e.g., Walliga id at 852 , holding that a hearing must be afforded to the student in cases involving degree revocation. It is also important to note that practically every self-imposed rule that colleges and universities respond to, namely their student handbooks, will state that a hearing should take place to determine the revocation of a degree (as opposed to expulsion).
(3) See, Sweezey v. New Hampshire, 354 U.S. 234, 263 (1957) identifying a college or university’s four, common-law recognized, academic freedoms in terms of the ability to determine for itself, on “academic grounds” (1) who may teach, (2) what may be taught, (3) how it shall be taught, and (4) to whom it shall be taught. See also, Regents of Univ. of Calif. v. Bakke, 438 U.S. 265, 312 (1978) holding that courts have given schools great deference in their admissions policies, Faulkner v. Univ. of Tenn, 627 So. 2d 362, 367 (Ala. 1992) stating that “educational institutions are uniquely situated to make determinations regarding academic qualifications or lack thereof. Establishing degree requirements and granting degrees are within the province of universities, not courts.”
(4) “What is deliberate indifference? A prison official demonstrates "deliberate indifference" if he or she recklessly disregards a substantial risk of harm to the prisoner. This is a higher standard than negligence, and requires that the official knows of and disregards an excessive risk of harm to the prisoner. The prison official does not, however, need to know of a specific risk from a specific source.” KNOW YOUR RIGHTS MEDICAL, DENTAL AND MENTAL HEALTH CARE, ACLU National Prison Project, Available at: https://www.aclu.org/sites/default/files/images/asset_upload_file690_25743.pdf
(5) Consider the grant of great academic misconduct disciplinary freedom to a public schools that are generally allowed to expel without a formal hearing but with fact finding an academically non-performing students, for example one who was warned about her bad grades. In Board of Curators of University of Missouri v. Horowitz, 435 U.S. 78 (1978), the Supreme Court held that in cases of an academic nature great deference must be given to a state university's academic decisions. The Horowitz Court concluded that a former medical student had been properly dismissed from the University of Missouri due to her academic deficiencies noting that courts traditionally have held educational institutions to less stringent procedural requirements in cases involving the failure of students to meet academic standards than in cases involving student violations of rules of conduct. See id. at 86-91.
(6) For purposes of this comment a degree revocation stemming from allegations of sexual misconduct, whether prior to, during, or after enrollment, is non-academic in nature, although inextricably related to the academic experience, and thus subject to Title IX’s reverse discrimination analysis, See, e.g. Yusuf v. Vassar College, 827 F. Supp. 952, 957 (S.D.N.Y. 1993)., available at: https://law.justia.com/cases/federal/district-courts/FSupp/827/952/1458720/. These instances of degree revocation do not function as sanctions for academic misconduct like cheating, but rather as sanction for sexual misconduct like rape.
(7) In Dinu v. President and Fellows of Harvard College, 56 F. Supp.2d 129 (D. Mass. 1999), the Court held that two Harvard students, suspended by the school’s disciplinary board after having been found guilty of stealing money from Harvard Student Agencies, were not entitled to the award of their degrees, even though they had already completed their courses. The Court agreed that Harvard had properly relied on language in its student handbook which stated: “Instances of theft, misappropriation, or unauthorized use of or damage to property or materials not one’s own will ordinarily result in disciplinary action, including requirement to withdraw from the College” even though this clause could be read as limited to actions that take place while the student is actually still studying.
(8) Schools that have withdrawn Mr. Cosby’s honorary degrees include Temple University, where he studied, which decided to withdraw only his honorary doctorate, https://www.hollywoodreporter.com/news/temple-rescinds-bill-cosbys-honorary-degree-1106496, and a whole host of other universities that had awarded degrees throughout Mr. Cosby’s time as an actor, including at least Johns Hopkins, Carnegie Mellon, Notre Dame, and Wesleyan. https://www.forbes.com/sites/susanadams/2018/04/27/universities-strip-bill-cosby-of-honorary-degrees/#3f7bd8d347b0.
(9) Just for an example of when heterosexual men must run to the courthouse to deploy Title IX’s tools in order to obtain and maintain their degree, consider the case of Haidak v. University of Massachusetts at Amherst, No. 18-1248 (1st Cir. August 6, 2019) available here: http://media.ca1.uscourts.gov/pdf.opinions/18-1248P-01A.pdf. It involves a man, taking a semester abroad in Cataluña, with his then girlfriend who eventually accuses him of a Title IX violation for implausible things including:
“According to Gibney, Haidak put his hands around her neck, pushed her onto the bed, hurt her by squeezing various pressure points, and grabbed her wrists and punched himself in the face with her fists. According to Haidak, Gibney struck him, and he only restrained her to prevent her from continuing to hit him, slap him, and kick him in the groin.” (id at 6).
Emphasis added to highlight the male bias required for UMass to believe Ms. Gibney’s allegation that, somehow, Mr. Haidak could make her hand into a fist to then hit his face with these fists, while he was grabbing these same hands, from below, at the wrist, which UMass found sufficiently true to issue a no-contact order.
Then consider the post-Cataluña facts UMass used to suspend Mr. Haidak:
“Gibney admitted to Berger that she "did unfortunately get comfortable with talking and therefore would respond some and answer a few calls." It later became clear that Gibney sent approximately seven hundred text messages to Haidak during that six-week period, with many messages after May 28.” (id, 8).
Emphasis added to highlight UMass’ male-bias in ignoring evidence both of confirmation and of Ms. Gibney’s own violation of the no-contact order. This led to UMass to act in a male biased way that further violated Mr. Haidak’s rights:
“This time, the university also concluded, without prior notice to Haidak, that Haidak's "behavior represent[ed] a direct and imminent threat to [his] safety and the safety of the University community" and warranted an immediate suspension. The notice informed Haidak that he had the right to a meeting to discuss the suspension.”
Everything went wrong thereafter. And the only remedy that the 1st Circuit Court of Appeal guaranteed for Mr. Haidak, who must have spent an enormous amount of money on this litigation, is NOT because UMass favored the complainant in examination:
“When a school reserves to itself the right to examine the witnesses, it also assumes for itself the responsibility to conduct reasonably adequate questioning. A school cannot both tell the student to forgo direct inquiry and then fail to reasonably probe the testimony tendered against that student. Whether the university in this case fulfilled that responsibility is a close question.” (id at 26)
But rather because in this case UMass-Amherst suspended Haidak for not enough:
“Here, however, the record belies any claim of exigency. The university waited thirteen days after learning about the continued contact to issue the suspension order. And the university offers no evidence suggesting that it was infeasible to provide some type of process during the available thirteen days before it imposed a suspension.” (id at 31).
(10) The story of what is included to satisfy due process in non-academic and thus mostly student sexual misconduct cases could be said to have started with decisions like Dixon v. Alabama State Board of Education, 294 F.2d 150 (5thCir. 1961), in which the Court decided that due process required notice and some opportunity for a hearing before students could be expelled for misconduct, and continues to the present flux and confusion in the Federal Circuits, where some hold that a student, facing a he-said/she-said situation has a due process right to cross examine his complainant, see, e.g., Doe v. Baum, 903 F.3d 575 (6th Cir. 2018), while others say not so, see Haidak, id, and still others say that if there’s a property interest—say the respondent’s ROTC career—the school cannot withhold the investigative report or other evidence from the respondent and the school cannot hold a sham adjudication hearing. Doe v. Purdue University, No. 17-3565 (7th Cir. June 28, 2019). We vigorously hope for and lobby to attain increases in Due Process concepts for Title IX respondents. See for example our comments on the up-and-coming changes to Title IX regulations from the Department of Education available here: https://www.studentmisconduct.com/news/which-standard-of-proof-do-schools-use-in-title-ix-sexual-misconduct-proceedings-and-did-devos-change-that and here:
https://www.studentmisconduct.com/news/2016/6/27/blog-post-04-harris
(11) For example, failure to disclose his degree’s revocation led the Supreme Court of New Jersey to revoke John Benstock’s license to practice law in the State of New Jersey after New York Law School revoked his Juris Doctor degree for failing to reveal material information on his application to law school and admission to the bar. See, In the Matter of John E. Benstock, 701 A.2d 129 (N.J. 1997). This result is in line with the position of the Law School Admission’s Council requiring full disclosure of all matters from law school applicants. We have commented on this in footnote 4 here: https://www.studentmisconduct.com/news/2016/6/27/blog-post-04-harris.
(12) Unless, of course, the student unknowingly hits a perfect storm of male bias as alleged in John Harnois v. University of Massachusetts at Dartmouth, Case 1:19-cv-10705-RGS, (D. Mass) where Mr. Harnois disclosed in writing some kind of criminal matter that had taken place 10 years prior to his enrollment in the PhD program in Oceanography (TAC at 24) but, unfortunately, his disclosure was ignored by the Title IX coordinator, Cynthia Cummings, a self-described militant black lesbian (TAC at 102) who had offered a $10,000.00 bounty seeking information on another respondent at her previous job, the University of Delaware, (Ms. Cummings left the University of Delaware after that student sued (TAC at 101)). She later proceeded to “constructively expel” Mr. Harnois (TAC at 1) and to destroy his reputation (TAC at 5) even though the school found him not responsible for the vague accusations (TAC at 6) at issue. We previously commented on Mr. Harnois’ case here:
(13) Saravanan v. Drexel University, 2017 U.S. Dist. LEXIS 193925 (E.D. Pa. Nov. 24, 2017), a case that we handled, for example, shows lack of confrontation, evidence of male bias from Drexel against Mr. Saravanan, and in general illustrates the strength of evidence required to support the respondent’s denial of charges of sexual misconduct.
“The court denied defendant’s motion to dismiss Plaintiff’s Title IX claims because, based on an erroneous outcome theory, the evidence he presented “indicate[s] a possible culture of gender bias against males claiming sexual assault by females.” Plaintiff provided statements Drexel staff made to him alleging his sexual assault claim was “ludicrous” and that they had “never heard of a woman raping a man.” Available at:
https://www.thefire.org/saravanan-v-drexel-university-2017-u-s-dist-lexis-193925-e-d-pa-nov-24-2017/
(14) To illustrate the rare, non-sexual misconduct degree revocation taking place after course completion but before graduation, consider that in 1997, Johns Hopkins denied a diploma to a student who pleaded guilty to the murder of a fellow student. The student had fulfilled all of the academic requirements a few months before the shooting and was waiting to receive his degree in the spring at the once yearly graduation ceremony. He unsuccessfully sued the university because it withheld his degree after the incident. The student argued that he was no longer a student because he had completed courses at the school, and thus that he was no longer within the school's jurisdiction. He lost because the local court found that his school could withhold a degree on a violation of student code of conduct which breached the student’s contract with the school. See Harwood v. Johns Hopkins Univ., 747 A.2d 205, 210-12 (Md. App. 2000), appeal denied, 759 A.2d 231 (Md. 2000).
(15) See, e.g, https://www.vox.com/a/sexual-harassment-assault-allegations-list/matt-lauer.