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DOE Pays Lip Service to Fairness in New Rules, but Makes Clear that Accused Students’ Rights are not a Priority

The Federal Department of Education (DOE) just released its final rules implementing changes to the Clery Act – the law that requires colleges and universities to report statistics about violent and sexual crimes on and near their campuses. While there are some positive developments in the new regulations, overall the requirements regarding disciplinary procedures illustrate that the DOE does not understand how its policies continue to undermine accused students’ rights to basic fairness.

The new rules make clear that students must be permitted to have an advisor of their choice during campus disciplinary proceedings, and that that advisor may be an attorney (34 C.F.R. 668.46(k)(2)(iii) and (iv)).  This is a step forward from the DOE’s April 2014 guidance on Title IX, where it simply required that schools have the same rules for both students regarding whether they could have an attorney present during the proceedings.  Many schools currently bar attorneys from participating or even from being in the room at all for disciplinary hearings.  However, while a student’s advisor must be permitted into the hearing room, schools continue to be allowed to place any restrictions they want on the advisor’s participation.  In other words, a student can bring an attorney, but the school can still prevent the attorney from speaking in the hearing. The rules also state that the school must provide the accuser and the accused “any information that will be used during informal and formal disciplinary meetings and hearings.” 34 C.F.R. 668.46(k)(3)(B)(iii). While this provision seems like an obvious requirement, currently schools are permitted, and often do, provide students with only a summary of the evidence that a school administrator deems “relevant” to the case, rather than the full body of evidence that has been submitted to the school.

Although the DOE notes, multiple times, that commenters to the draft version of the rules raised concerns about due process protections for accused students and the qualifications of campus employees to preside over these disciplinary hearings, it repeatedly dismissed those concerns as unfounded, stating “these procedures do provide significant protection for all parties.” Two new requirements in the rules in particular make this statement seem disingenuous.

First, the new rule requires that schools publish a complete list of the possible sanctions for a student found to have violated the school’s rules regarding sexual assault, domestic violence, dating violence, or stalking (34 C.F. R. Part 668.46(k)(1)(iii)). While transparency seems like a good thing for students accused of these violations, the DOE explicitly states that the purpose of this rule is to “deter institutions from listing (and subsequently imposing) inappropriately light sanctions.” As critics of this rule pointed out during the comment period, this list of sanctions will limit schools’ abilities to provide for an individualized process that takes into account the unique facts of each case, and will also “limit the institution’s ability to be innovative in imposing sanctions.” Although the DOE entrusts schools with adjudicating these cases, it seems to believe that, left to their own devices, schools will be too lenient when they find misconduct; it therefore requires them to list the possible punishments to shame them into providing only severe punishments for these offenses, regardless of the individual facts of each case.

Second, the rules require that schools provide training for those staff who conduct disciplinary proceedings (34 C.F.R. Part 668.46(k)(2)(ii)). Like the requirement of publishing sanctions, this initially appears to be a positive step, since a major criticism of these proceedings has been that they are run by school staff who have no relevant experience in law or sexual assault matters.  However, the required training is on sexual assault, domestic violence, dating violence, and stalking, and “how to conduct an investigation and hearing process that protects the safety of the victims and promotes accountability.” 34 C.F.R. Part 668.46(k)(2)(ii). The training thus addresses the fact that officials presiding over these hearings generally have no background or knowledge about gender-based violence, but ignores that these officials also have no legal background or training on how to ensure that the proceedings are conducted in a neutral and impartial manner.  The effect of this requirement is to skew the proceedings even more against the accused student, by trying to protect the victim and “promote accountability” rather than ensure that the proceeding is fair and aimed at uncovering the truth of what occurred.

Although, on their face, the new rules seemed like a step in the right direction because of their focus on transparency and training, in effect they continue to direct schools to bias their proceedings against accused students.  These rules, coupled with the schools’ continued requirement to abide by Title IX rules and regulations, perpetuate the uneven process that has become a hallmark of campus sexual assault disciplinary proceedings.

An overview of other provisions of the Clery Act’s new rules can be found here.

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