Notes Taken by Davy Jones of the Presentation Made by

Dr. Robert Lawson to the Senate Councils Ad Hoc Committee on AR 6.2

3 reasons for concern about current UK practices re: exercise of AR 6.2

1) Basic need for fairness, in his opinion, because the consequences for the accused are so serious and
long-lasting

2) Four or five appeals courts in other states have found lack of constitutional due process when the
accused student did not have an attorney to represent him

3) (Not clear to me what was the third per se reason)

He described that he had declined to be a Hearing Officer in the UK process under a previous version of
the AR 6.2, because he was so concerned about the procedures prescribed in the AR 6.2 at that time. UK
Legal Office gave him the impression at that time that UK Legal Office would be ok in the future for the
accused to have a lawyer present representing the accused.

Lawson then later did agree to serve as a hearing officer in two cases, one in which the student had a
lawyer present and one in which the student did not have a lawyer present (because the student had
chosen to represent himself). In both of these cases, UK chose as the UK representative on the
prosecutorial side a staff member from the Dean of Student Office who has a law degree. In the case
of the student representing himself, he then asked for UK to provide legal counsel for him because he
could not afford it. There was nothing at the time, nor the present time, in the UK regulation AR 6.2
about providing a lawyer for the accused. In his opinion, this does not rise to the level of a due process
issue (i.e., to have a lawyer for the accused provided by UK). The current AR 6.2 prescribes that UK will
select a staff member who has a law degree to represent UK and that means the student who has no
lawyer will be trying to defend himself against UK who has the trained lawyer acting as the
representative of the University. In his opinion, a court would find that this to be an improper
asymmetry.

Next suppose that the complainant also has present in support a person who is a lawyer. Now the
accused is having to defend against the combined skill of by two lawyers, one representing UK as the
University who is acting a prosecutor of the case and one in support of the complainant, and while the
accused has no supporting legal counsel. A negative case decision against a student in this scenario
could so negatively affect the students life that it is almost as if it were a criminal case, rather than an
administrative case, yet the student has no one acting in his legal defense.

At this point a member of the University administration attending this committee meeting expressed
the opinion that no constitutional due process issues arise in the above scenario because this is an
administrative process internal to the University and not a criminal process in external court. Another
member of the University administration attending the committee meeting agreed with Dr. Lawson that
because the potential life consequences for the accused are so severe and because the standard of
proof is so low (preponderance of evidence, 50.1%), it warrants that UK administratively opt to use
procedures similar to those used externally in a criminal case.

In criminal court cases, the accused has a right to confront the accuser. The accused
1) has the right to cross-examine
2) is protected against written or oral statements of others made before the trial
3) has the right to face to face encounter
The old AR 6.2 allowed that a process against the accused could proceed without the accused being
present, and allowed written statements made before the proceedings to be introduced at the
proceedings in lieu of actual testimony at the proceedings. Dr. Lawson said he didnt see how a federal
court would allow this to be a UK practice.

The current AR 6.2 is now missing any express provision stating whether or not written statements can
be provided in the proceedings in lieu of actual testimony at the proceedings. The current AR 6.2 is
ambiguous on this point in the situation, in which the accused is not present when the information is
rendered. Down in the accommodation section, the current AR 6.2 makes a reference to that a
written statement can be submitted --- he asks what does this mean? In his opinion, the AR 6.2 needs
to make it unambiguous that written statements cannot be provided in lieu of testimony.

With respect of the ability of the accused to cross-examine the accuser, the current AR 6.2 prescribes
that the questions must be submitted in advance as written questions to be read to the accuser by the
Hearing Officer. But Dr. Lawson objects: how can the accused know what questions to submit without
having first heard the testimony? He notes that in one of the two cases in which he was the Hearing
Officer, the student did not have an attorney to help. In his opinion, the federal court will have an issue
with this.

Dr. Lawson noted that UK is a state government university, and that due process applies to actions of
the state and not just to criminal cases.

Dr. Lawson then discussed issues about the Hearing Panel. According to the current AR 6.2, the
President creates a pool of 21, or a pool up to 21, and then randomly selects 3. In a case that he was the
Hearing Officer, he impression was that there only a pool of 15. In one of the cases in which he was the
Hearing Officer, the student did have an attorney present, who motioned that the entire panel be
stricken, because they are all UK employees and so are presumed to be tilted toward the UK
administration. He doesnt think this objection would necessarily survive in federal court, but it
illustrates consideration that UK should be thinking about in improving its practices.

Dr. Lawson urged that attention be given to what is the pool and how is the pool used? There ought
to be a balance of male and female members. No one from the Dean of Students office should be in the
pool. Consideration needs to be given to what other categories of persons ought be eliminated from
the pool. In his opinion, the pool ought be comprised of tenured faculty, in the case of an accused
student. He is at a loss for who should be in the pool if the accused is a staff member or a faculty
member.

As to the orientation provided to members of the selected Hearing Panel, they should not have received
prehearing information or have prehearing knowledge about the case. For example, no opinion by the
Title IX Office should reach the panel members before the hearing itself. The AR 6.2 makes reference to
a hearing file - what is in this file and who has access to it before the hearing?

As to the orientation provided to the Hearing Officer, in an earlier orientation, two speakers started by
saying women dont lie about things like this he felt the whole orientation was biased in this way.
Subsequently, it is his impression that the orientation for new Hearing Officers is more neutral.

With respect to the standard of proof required to find against the accused, the current AR 6.2 uses
preponderance of evidence, i.e., 50.1% of the evidence. This is the standard used in civil court cases.
In criminal court cases, the 12 jurors must be unanimous on the standard of beyond reasonable doubt.
But this higher standard does not seem usable in cases arising under AR 6.2. He urges that instead the
standard be clear and convincing evidence (meaning highly probable). This is the standard used for
example to cause a person with mental illness to be force-hospitalized.

On the issue of sanctions, there is a problem in the current AR 6.2, that prescribes that UK can remove
an earlier earned degree, even if earned degree was awarded before the act occurred for which the
accused has been found responsible. Also, the current AR 6.2 lists as possible sanctions suspension,
dismissal and any other appropriate sanction without defining what those other appropriate sanctions
include. Because the person found guilty under an AR 6.2 process will likely have difficulty to get
admitted to any other University, which is a severe life-long consequence, the penalty should be
suspension, not dismissal, because under suspension the person has a possibility of at some point
becoming readmitted back into UK and finishing their degree.

Under the current AR 6.2, the Dean of Students can reject the decision of the Hearing Panel about
sanction, and instead apply a sanction determined by the Dean of Students. It would be better if the
wording allowed the Dean of Students the discretion to reduce the sanction recommended by the
Hearing Panel, but not be allowed to impose a sanction greater than determined by the Hearing Panel.
Finally, the University needs to provide in writing the procedures that will be used in the hearing,
especially if the student does not have a representing attorney.

In summary, Dr. Lawson expressed the opinion, that the University needs to prospectively design its
procedures for AR 6.2 such that the procedures will withstand external challenge in a federal court.

(Note from DJ: the above are only my own impressions as to what Dr. Lawson expressed to the
committee and I do not claim that the above is free from inadvertent error or omission)
-------------------------------------------------

From: Bird-Pollan, Jennifer E

Sent: Tuesday, December 06, 2016 12:31 PM
To: Jones, Davy; Alexander, Martha L; jones, willis
Cc: Christ, Alice T; Bell, Garrett; Collins, Tommy; Deaton, Marcy; Kraemer, Beth; Logan, TK; McCormick,
Katherine; Brothers, Sheila C
Subject: Re: Status of Ad Hoc Committee on AR 6:2

Hi everyone,

Just a reminder that we will be meeting tomorrow, Wednesday, December 7 at 9 am in Room

230 Gatton to hear from Professor Bob Lawson, who will speak to us about his experiences as a
hearing officer in several sexual assault Title IX cases on campus.

Hope to see you there,

Best,
Jennifer