Hilary B.

Miller
Attorney at Law
Admitted in New York, Connecticut, District of Columbia and England and Wales 500 West Putnam Avenue Suite 400 Greenwich, Connecticut 06830-6096 (203) 399-1320 Facsimile: (914) 206-3727 250 Park Avenue 7th Floor New York, New York 10177-0799 (646) 350-0908 1629 K Street, N.W. Suite 300 Washington, D.C. 20006-1631 (202) 449-9484 hilary@miller.net

March 15, 2014

Connecticut Office Dr. Philip J. Hanlon President Dartmouth College 207 Parkhurst Hall Hanover, New Hampshire 03755 Re: Draft Unified Disciplinary Procedures for Sexual Assault by Students and Student Organizations Dear President Hanlon: I respectfully write to provide limited comments on the March 14, 2014 draft of the Unified Disciplinary Procedures for Sexual Assault by Students and Student Organizations. As a threshold matter, although the undersigned is a Vice President of the Dartmouth Lawyers Association, the opinions contained in this letter should be ascribed solely to the commenter and not to the Association. Also, the comments that follow should in no respect be seen as critical of the zero-tolerance, anti-assault principles which underlie the procedures. I write, nevertheless, solely to address the adjudicatory process defined by the draft procedures. I am a practicing attorney who advises governments and private organizations on such matters. From this perspective, the absence of basic due process protections for responding persons (alleged offenders) under these procedures is striking. The consequences to a student who is found to have engaged in sexual assault are potentially dire and long-lasting, and the remedy of expulsion is severe. Yet in other areas of endeavor, where important such interests are at stake, we would find offensive a process where the investigator is also the trier of fact. Despite the obvious economies and simplicity associated with the proposed external-investigatoras-judge model, this approach has serious flaws which cause it to fail to comport with basic principles of fair play.

Please Reply To:

Dr. Philip J. Hanlon March 15, 2014 Page 2 The draft procedures depart from fundamental adjudicatory principles widely understood elsewhere in our society, including the accuseds right to the testimony of witnesses, to crossexamine those against him, and to confront the accuser. While current legal standards do not require a full hearing or trial in expulsion proceedings from a private university, the farther Dartmouths procedures depart from providing these protections, the more likely it is that the procedures will be seen as rough justice. There is no need for these shortcuts.1 The problematic nature of a non-independent adjudicatory function is exacerbated by the limited nature of review of the investigators determination. Specifically, an accused is precluded from challenging the investigators factual findings, even if affected by manifest error or bias. The procedures place too much non-reviewable power in the hands of one person. Long experience with investigatory processes shows that investigator bias arises from a variety of frequently wellintentioned and entirely salutary processes. Nevertheless, bias is bias. An independent adjudicatory process with a full opportunity for the accused to be heard, as aforesaid, is the hallmark of due process in our society. As the U.S. Supreme Court2 has determined, The concern [about due process] would be mostly academic if the disciplinary process were a totally accurate, unerring process, never mistaken and never unfair. Likewise, throughout the history of Title IX, numerous parties have opined that procedures designed to ensure the rights of the victim, while according due process to the accused, will lead to sound and supportable decisions and enhanced public confidence in the results. Dartmouth does not need to compromise on principles of fair play in order to get tough on sexual assault.

for the rights of an accused in College disciplinary proceedings should also give consideration to the possibility that the accused may be engaged in the defense of concomitant criminal proceedings. The pendency of such criminal proceedings may impede the ability of the accused to cooperate fully in college disciplinary proceedings. While these kinds of problems are more fairly addressed by an independent college adjudicatory process, they are beyond the scope of this letter.
2Goss

1Respect

v. Lopez, 419 U.S. 565 (1975).

Dr. Philip J. Hanlon March 15, 2014 Page 3 Thank you for your consideration in this matter, President Hanlon. Very truly yours,

VIA ELECTRONIC MAIL

HILARY B. MILLER 73 Tu 74