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The Implications of John Doe v. Miami University et. al. (2008) for the Accused, Part 3: Notice and Access to Evidence

In addition to the novel interpretations of the law laid out in Part 1 and Part 2 of this series, the Court also reaffirmed the importance of the accused's right to notice of the charges and access to the evidence in University Title IX Hearings. These rights seem so obvious and fundamental, but believe it or not the Court's affirmance of these rights is significant given past deprivations that the accused have faced.

In terms of access to the evidence, John Doe alleged that he was not provided with the Title IX Report before the hearing. This report is prepared by someone called a Title IX Investigator, and often contains detailed information, evidence, and summaries of interviews that this person has conducted before the hearing. The hearing panel almost always has access to the report and has read the report before the hearing. Without access to the report, the accused goes into the hearing at a significant disadvantage, and therefore the Court firmly held that "[t]he Constitution does require, however, that the student be provided the evidence against him."

The Court did not find a notice issue in this particular case, but notice is an issue that has received some attention in the courts lately so I want to make an additional point about it: it is very important to compare the initial allegations that the accused receives (usually through email) with the allegations actually prosecuted at the hearing. Courts have proven to be receptive to arguments about students who, say, are initially notified that they are alleged to have used unwanted force during a sexual encounter, but who are then later subjected to a hearing where the only issue is whether or not the accuser consumed too much alcohol to consent. Disconnect between the allegations and the actual prosecution are very important and can be actionable in court .

That wraps up our series on this very important case. If you have questions about John Doe v. Miami or any other questions related to Title IX, contact the attorneys at Rittgers & Rittgers.

Doe v. Miami Univ., 882 F.3d 579, 603 (6th Cir.2018)

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