A Partial Victory for Due Process on Campus

Some cautious (and perhaps unexpected) good news from the Department of Education. Inside Higher Ed reports that the new DOE rules regarding the Clery Act are not nearly as troublesome as many, including me, had feared. (I formally commented on the rules here.)

The new rules contain two positive items. The first, and most important, is a welcome clarification regarding the role of attorneys in disciplinary cases. As I’ve noted previously, sexual assault is a serious crime, and colleges are poorly equipped (if at all) to investigate serious crimes. In an ideal world, the DOE would have issued a regulation requiring colleges to turn over investigation of all violent crimes on campus to local law enforcement.

Since that option never was a realistic possibility, the proposed rule is at least a step in the right direction. The idea that students accused of a serious crime should be denied the right to counsel in a hearing–or, in the case of the most extreme institutions, such as Swarthmore, denied the right even to tell an attorney about the charges against them–undermines basic principles of due process and fair play. That’s especially true in cases, such as sexual assault claims, that might subsequently result in criminal charges.

Unfortunately, the proposed rules still deny accused students the right to full representation by attorneys–that is, to have their lawyers play a full role in what passes for due process on many campuses. Instead, colleges will have the option to “establish restrictions” on the attorney’s participation in the proceedings, “as long as the restrictions apply equally to both parties.” But in this case, the accuser is already effectively represented by the prosecutor (the school), so a restriction on her attorney’s right to full participation would have far less impact than on the rights of the accused.

The second important item is what the proposed rules did not do. Emotional and psychological abuse–undefined–wasn’t included as a crime required for reporting under the Clery Act. More important, the committee didn’t recommend including the “Dear Colleague” letter recommendations (preponderance of evidence to brand a student a rapist) as part of the rule. As long as the current Education Department is in place, there seems to be little hope that the “Dear Colleague” letter will be set aside. But this move retains the option that some future Education Department will show greater respect for due process.

Much of the remainder of the proposed rule is unobjectionable or even commendable–with the exception of one provision. As inside Higher Ed notes, “Colleges would be required to report instances of domestic violence, dating violence and stalking even if the behavior isn’t considered a crime in the jurisdiction where they are located. “

This might be known as a permutation of the Yale rule, in which the university has offered a much broader definition of sexual assault than what exists in the local jurisdiction (or in any city in Connecticut). There seems to be little reason for colleges to redefine criminal terms.

All told, however, these draft rules are much better than anticipated.

KC Johnson

KC Johnson is a history professor at Brooklyn College and the City University of New York Graduate Center. He is the author, along with Stuart Taylor, of The Campus Rape Frenzy: The Attack on Due Process at America's Universities.

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