ABA Task Force Broadens Effort to Achieve Fairness in Campus Sex Cases

SAVE

An American Bar Association (ABA) Task Force has concluded that colleges and universities should use a more balanced and objective approach in campus sexual assault cases.  Schools must “fully and fairly investigate both sides of the story and then provide an impartial forum for determining what occurred.” The Report, issued by the ABA Criminal Justice Section Task Force on College Due Process Rights and Victim Protections, was drafted amid growing controversies over current campus sexual assault policies.

In the six years since its release, considerable confusion has arisen from the Department of Education’s Office for Civil Rights 2011 Dear Colleague Letter, causing institutional policies to vary widely and administrators to struggle to navigate the complexities of federal compliance.

Recommendations from the ABA

To assist universities in developing the best approach, the ABA report provided specific recommendations that include:

  • Written notice provided to both parties before a formal investigation begins,
  • Opportunity for both parties to review investigation reports and respond to the final report,
  • Opportunity for parties to conduct ongoing questioning of witnesses through a hearing officer,
  • Requirement for unanimous verdicts by the hearing panel for a finding of responsibility,
  • Opportunity for both parties to file a limited appeal, and
  • Allowance for non-mediation alternatives, such as restorative justice.

Adjudicatory Model is Best Practice

Beyond the above-referenced recommendations, the ABA endorsed the adjudicatory model, in which a hearing is provided, rather than an investigatory model, where the final decision is based solely on the investigation report.  The Task Force explained that the adjudicatory model can “helps to offset bias.”  Further, the single investigator model “carries inherent structural fairness risks especially as it relates to cases in which suspension or expulsion are a possibility.”

The ABA report can be found here: http://www.abajournal.com/news/article/aba_task_force_recommends_due_process_protections_in_campus_sexual_assault.

The ABA report is the fourth report issued over the last several months from various organizations, all calling for more robust due process protections in campus sexual assault cases. The other organizations are the American College of Trial Lawyers, Stop Abusive and Violent Environments, and the NCHERM Group.

NACUA Agrees It’s Time for Change

Along similar lines, the National Association of College and University Attorneys recently met at their annual meeting and discussed how to best protect institutions from the dramatic rise in due process lawsuits since 2011. The college lawyers concluded that schools must ensure a “scrupulous, yet simple process” that treats both the accuser and the accused fairly: http://www.chronicle.com/article/College-Lawyers-Say-Title-IX/240441