Several other courts had held that due process did not apply to cases of this type involving private colleges, but, as Judge John Fowlkes, Jr., noted in the cases involving Rhodes College, those cases were only based upon a “breach of contract claim against a private university”; i.e. that the university had promised in its policy statements to treat students fairly.
But this case is different, Fowlkes ruled: “These cases are distinguishable, however, from the present circumstance because although Defendant Rhodes is a private university, Plaintiff’s claim here, regarding cross-examination, invokes due process concerns under Title IX, not a breach of contract theory.”
Thus Banzhaf is repeating the suggestion that he had made earlier to attorneys for students charged with rape; argue violation of due process rather than simply unfairness, or that error occurred in the campus hearing, and do so based upon the important federal rights established by Title IX.
In other words, says Banzhaf, a simple change in pleadings by lawyers for the accused – the words used in the complaints to bring these campus rape cases to courts – can finally impose on all institutions of higher education, private as well as public, the obligation to conduct disciplinary proceedings which are fair and accord due process.