By Emily Wilkins | September 19, 2018 11:59AM ET | Bloomberg Government
College students accused of sexual harassment, but not their accusers, would be permitted to appeal a school’s decision about the responsibility for the assault, under a draft rule being considered by the Education Department.
However, victim’s advocates say that could be a violation of law.
The provision is one of many in a leaked draft of a proposed sexual-assault rule from the department published by the Association of Title IX Administrators and is similar in content to a draft obtained by the New York Times. The draft rule still is being deliberated within the government and could be different from a proposed rule the department will release for public comment.
According to the draft, schools previously limited the appeals process only to the student who would be subject to the school’s discipline policies. A 2011 Obama-era guidance document changed that, requiring both complainant and accused the chance to appeal.
Since then, Congress has passed a law updating how colleges and universities should deal with crimes including sexual assault, domestic violence and stalking (Pubic Law 113-4). In related regulations, the Education Department clarified that “cases of alleged dating violence, domestic violence, sexual assault, and stalking would protect the accuser and the accused by ensuring … an equal right to appeal if appeals are available.”
Experts on the law regarding how colleges and universities should treat crime on campus are divided over whether the draft proposed rule is in conflict with the law.
Abigail Boyer, the interim executive director for the nonprofit Clery Center, which works with schools on safety policies, said the center’s interpretation was that both parties had the right to appeal.
But Steven J. Healy, an expert on campus safety, said the law didn’t explicitly state that both groups are allowed to appeal.
“If you look at it from a derivative perspective, one would assume fundamental fairness means both parties have equal rights when it comes to the hearing and appeal,” he said. “But that is not explicitly stated.”
Groups supporting accused students say that the compliant already has more resources to build a case and, in some cases, a lower standard of evidence. Gregory Josefchuk, the president of the National Coalition For Men Carolina Chapter, said it amounts to double jeopardy for those accused.
“Just because you do not agree with the finding does not mean you should automatically subject the accused all over again and retry the case,” he said.
Victims’ advocate groups say the complainants have plenty to lose if the school decides in favor of the accused, sometime referred to as the respondent. That should give them the right to appeal, said Shiwali Patel, senior counsel at the National Women’s Law Center.
“If the school found the respondent is not responsible and the complainant has to be retraumatized by seeing them on campus, by still living in the same dorm room, or sharing classes together,” she said, “that is going to have a severe impact on their access to education.”
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NCFM in Bloomberg, Leaked Sex-Assault Draft Could Raise Bar for Accusers in College
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