The New Campus Harassment Hearing Regulations: A First Look
No one is in favor of sexual violence, but due process matters too, and right now it tends to be dangerously inadequate. Pre-hearing discovery of evidence is often forbidden. Often the accused cannot confront or cross-examine the accuser. Academic tribunals are generally comprised of teachers and/or students without legal credentials, in a setting where proper application of legal rules is critical. Because lawyers are generally barred from advocating on behalf of either an accuser or an accused, there may be no properly trained voice in the room when legal questions arise. The Obama administration’s directive on how federally-funded educational institutions generally should handle allegations of sexual harassment or assault exacerbated these problems by prescribing an inadequate standard of proof and mandating pre-hearing treatment of the accused that basically presupposed his guilt. It also specifically approved of denying the accused the right to cross-examine an accuser because it “may be traumatic or intimidating,” never mind that it may also deprive the dishonestly accused of the only path to showing the tribunal that the accuser is lying. While I am not a fan of Betsy DeVos, the current Secretary of Education, I did applaud her decision a year ago to rescind that guidance. At the time, DeVos stated that the Department would in due course issue new regulations. The New York Times has now seen those regulations in draft form, and its early report on them is mostly encouraging.