An Update on the Law Concerning Campus Sexual Assault

Over a year ago, I published a blog post describing the unfair processes used by many schools to deal with complaints of sexual assault and harassment, and compared it to the criminal justice system. As I wrote then, the Department of Education (DOE) Office of Civil Rights (OCR) has placed enormous pressure on colleges and universities under Title IX to take swift and decisive action against students accused of sexual assault, even though the stacked procedures and low standard of proof make it likely that many innocent students are being punished (often, suspended or expelled), with substantial damage to their reputations and future careers.

What has changed since then? For the most part, not very much. A different bureau of DOE, separate from OCR, did issue some regulations following amendments to the Clery Act and the Violence Against Women Act. The most noticeable impact of the regulations is that now, in cases involving sexual assault (but not necessarily misconduct short of sexual assault), schools must allow students to bring an attorney or other advisor of their choice to hearings and meetings in the disciplinary process. That is unquestionably a step forward. However, the regulations still permit schools to prevent counsel from taking an active role, and the standard if not universal practice is for attorneys to be able to attend but not participate, other than whispering or passing notes to the student.

These regulations also purport to set some minimal standards for fairness in disciplinary proceedings. For instance, they require that a sexual assault inquiry be “consistent with the institution’s policies and transparent to the accuser and accused,” and that the school provide “timely and equal access to the accuser, the accused, and appropriate officials to any information that will be used during informal and formal disciplinary meetings and hearings.” However, although the regulations theoretically have the force of law, in practice students are not likely to be able to enforce these rights in court. The DOE could do so, but is rarely interested in protecting the due process rights of accused students. Without teeth, these aspects of the regulations have not had much effect. In my experience, they are routinely ignored as schools conduct themselves in a slow, opaque manner and try to ambush accused students with previously-undisclosed charges and evidence.

However, while federal laws and regulations have not changed much, there has been some movement in the courts. Although, until recently, lawsuits by accused students were only able to gain limited traction, accused students have recently had some success in convincing judges, especially state judges, that they have been subjected to unfair procedures or wrongly punished. Some universities and a few states have implemented policies that sex without explicit “affirmative consent” is sexual assault. But at least one court has held that such a presumption turns the presumption of innocence on its head by requiring an accused student to prove that he acted appropriately.

The way well-intentioned but overwhelmed school officials are forced to handle these complex situations does not serve anyone’s interests. Accused and accuser alike go through a process that is difficult to see as legitimate and does not provide vindication for either side. At this point, the legal community will have to see whether the next President, and his or her Department of Education, continue along the same track or forge a new direction in approaching the complicated situation of campus sexual assault.