Contact: Rebecca Stewart
Telephone: 513-479-3335
Email: info@saveservices.org
Appellate Court Decisions Generally Support Proposed Federal Regulations for Campus Sexual Assault
WASHINGTON / January 7, 2019 – A report released today analyzes appellate court decisions on campus sexual assault, and concludes “the findings of the 14 appellate decisions are generally consistent with, and substantially enhance the legal basis for the provisions contained in the proposed Title IX regulations.”
The report analyzes 14 appellate rulings that were at least partly favorable to the accused student, and were issued from 2013 to 2018. Of the 14 decisions, eight were rendered in 2018 alone.
Among the 14 cases, five were decided by federal appellate courts and nine were resolved by state appellate courts. Four cases came from California appellate courts, three rulings from New York courts, and three from the 6th Circuit Court. Additional rulings came from the 1st, 2nd, and 4th Circuit Courts, and the Washington state appeals court.
The decisions highlighted due process deficiencies in eight areas: Insufficient hearing process, lack of cross-examination, insufficient notice, inadequate investigation, conflicting roles of college officials, improper use of witness testimony, potential sex bias, and misuse of affirmative consent policies.
The report then compares the appellate Judicial Findings with the due process provisions enumerated in a recent Notice of Proposed Rule-Making issued by the Department of Education (1). The analysis documents a general consistency between the appellate court rulings and the proposed regulatory changes.
Last week, the California Court of Appeal issued another decision in favor of the accused student. The court chided the University of Southern California for its reliance on a single-investigator approach, noting this practice “ignores the fundamental nature of cross-examination,” which is “incompatible” with any credible effort “to uncover the truth.” (2)
The SAVE Special Report is available online (3). A summary of the 14 cases is also available (4).
Citations:
- https://www.regulations.gov/document?D=ED-2018-OCR-0064-0001
- https://kcjohnson.files.wordpress.com/2019/01/usc-iv-decision.pdf
- http://www.saveservices.org/wp-content/uploads/Appellate-Court-Cases-Report.pdf
- http://www.saveservices.org/wp-content/uploads/Appellate-Court-Cases-Appendix.pdf
SAVE — Stop Abusive and Violent Environments — is working for effective and fair solutions to domestic violence and campus sexual assault: www.saveservices.org