Education law. Schooled in Due Process
| Author | Wendy Davis |
| Pages | 18-19 |
EDUCATION LAW
Schooled
in Due
Process
Class actions and pending rules
could change colleges’
sex assault procedures
BY WENDY DAVIS
In 2011, Vice President Joe Biden
and Secretary of Education Arne
Duncan shook up colleges when
they introduced new guidance for
handling sexual assault allegations.
The ofcials proposed what’s now
known as the “Dear Colleague” letter,
which urged schools to crack down on
sexual assault or risk losing funds for
failure to comply with Title IX, a civil
rights law prohibiting gender-based dis-
crimination—including harassment and
sexual violence—at schools receiving
federal money.
The letter specically encouraged
schools to adjudicate claims under a
“preponderance of the evidence” stan-
dard—the same one used in civil cases.
The guidance also discouraged schools
from allowing cross-examination.
That 2011 letter and subsequent
additional guidance in 2014 are widely
seen as catalyzing schools across the
country to respond more vigorously to
claims of sexual assault.
In many cases, schools suspended or
expelled alleged offenders based on the
ndings of an investigator but without
holding hearings at which people testi-
ed or were cross-examined.
But as schools moved against alleged
offenders, accused students countered
that their due process rights were being
ignored. Hundreds of students who
were suspended or expelled sued their
schools, often resulting in settlements or
rulings against the schools.
Against that backdrop, Obama-era
guidance was rescinded in September
2017 by Department of Education Sec-
retary Betsy DeVos, who issued interim
rules at that time. In November 2018,
for the rst time since 1975, regulations
were proposed.
“Far too many students have been
forced to go to court to ensure their
rights are protected because the De-
partment has not set out legally binding
rules that hold schools accountable for
responding to allegations of sexual ha-
rassment in a supportive, fair manner,”
DeVos stated when she unveiled the
proposed regulations.
Those potential rules, which have
drawn more than 120,000 public com-
ments, were not nalized at press time.
A closer look at the changes
Among various changes, the rules
would redene sexual harassment as
“unwelcome conduct on the basis of
sex that is so severe, pervasive and
objectively offensive that it denies a
person access to the school’s education
program or activity.”
This is a change from the denition
of sexual harassment as “unwelcome
conduct of a sexual nature” in the 2011
“Dear Colleague” letter.
One of the most controversial of the
new proposals would require schools to
hold hearings at which accused students
have some of the same safeguards as
defendants in criminal proceedings.
School ofcials would be required to
presume accused students innocent of
the allegations and would also have to
allow both sides to be cross-examined.
The proposed regulations also would
allow schools to adjudicate cases based
on “clear and convincing” evidence—a
higher standard than “preponderance of
the evidence.”
Potential efects
Some advocates for accused students
welcome many of the proposals.
University of San Francisco School
of Law professor Lara Bazelon, who
directs a clinic that represents accused
students facing expulsion, has argued
provisions of DeVos’ plan could boost
students’ due process protections.
Bazelon says the Dear Colleague let-
ter “came from a good place,” but “end-
ed up doing more harm than good.”
She adds that schools responded to
the guidance by creating “kangaroo
courts that expel people with no process
at all or very little.”
Some prominent law professors have
expressed support for portions of the
proposed rules, arguing that students
shouldn’t be subject to life-changing
consequences of suspension or expul-
sion without due process safeguards.
“Given what’s at stake in these
kinds of proceedings—both for the
Department of Education Secretary
Betsy DeVos
Photo by Brendan Smialowski/AFP via Getty Images
ABA JOURNAL | APRIL–MAY 2020
18
To continue reading
Request your trial