One of the biggest changes for colleges is a requirement that they respond to complaints with courtroom-like hearings where representatives for the accused and the alleged victim can call witnesses and challenge their credibility. The hearings, which can occur live or virtually, will be optional for K-12 schools. Schools will have to use trained personnel to evaluate evidence and make decisions on cases. Schools will also have their choice of using two standards of evidence to make decisions: a “clear and convincing” standard or a less-restrictive standard that relies on the “preponderance of evidence." ...
Full story at https://www.politico.com/news/2020/05/06/betsy-devos-sexual-misconduct-rule-schools-240131
The actual regs - to be published in the Federal Register - are at:
Yours truly will leave it to the legal types (undoubtedly there will be litigation) to pick through the new regs. The document at the link above runs over a thousand pages, but most of those pages are comments received on the earlier draft. I did note two interesting excerpts from the document. The first is a lengthy citation of a veto of then-Governor Jerry Brown of a bill that sought to make the old regs a feature of California law. The second seems to suggest that the due process requirements will require a "third party," presumably, some kind of neutral decision maker. I have noted in prior postings that the use of an outside third party neutral is standard in union grievance procedures (of the type used by UC). More generally, it separates the role of prosecutor and decision maker, as in the external court system.
Below are the two excerpts:
Honorable Edmund G. Brown, Jr., former Governor of California, vetoed a California bill in 2017 that would have codified parts of the withdrawn 2011 Dear Colleague Letter, and Governor Brown’s veto statement asserted:
Sexual harassment and sexual violence are serious and complicated matters for colleges to resolve. On the one side are complainants who come forward to seek justice and protection; on the other side stand accused students, who, guilty or not, must be treated fairly and with the presumption of innocence until the facts speak otherwise. Then, as we know, there are victims who never come forward, and perpetrators who walk free. Justice does not come easily in this environment. . . . [T]houghtful legal minds have increasingly questioned whether federal and state actions to prevent and redress sexual harassment and assault – well-intentioned as they are – have also unintentionally resulted in some colleges’ failure to uphold due process for accused students. Depriving any student of higher education opportunities should not be done lightly, or out of fear of losing state or federal funding.
Governor Brown then convened a task force, or working group, to make recommendations about how California institutions of higher education should address allegations of sexual misconduct. That working group released a memorandum detailing those recommendations, and many of these recommendations are consistent with the approach taken in these final regulations as to how postsecondary institutions should respond to sexual harassment allegations. [p. 85]
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“Research demonstrates that people’s views about their outcomes are shaped not solely by how fair or favorable an outcome appears to be but also by the fairness of the process through which the decision was reached. A fair process provided by a third party leads to higher perceptions of legitimacy; in turn, legitimacy leads to increased compliance with the law.” [pp. 86-87]
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