Colleges and universities have struggled for years with how best to fairly handle allegations of student sexual assault, misconduct, and harassment (collectively, sexual misconduct).
Over the years, many who have been impacted by, or immersed in, these matters have viewed the colloquial pendulum as having swung too far against one side or the other. In November 2018, in a dramatic and much anticipated step, the U.S. Department of Education Office for Civil Rights (OCR) issued proposed formal regulations for how our nation’s colleges and universities must respond to reports of sexual misconduct.
Consistency, fairness, transparency, and reliability in outcomes are among the chief goals of the proposed regulations, which have now gone through notice and comment but still may have a bumpy ride ahead. The proposed regulations come in the wake of OCR’s September 2017 rescission of a series of less formal (but no less controversial) OCR guidance documents issued beginning in April 2011.
‘Dear Colleague’ Letters
These “Dear Colleague” letters sparked contentious and closely-watched public debate and litigation as colleges and universities changed their policies and procedures to avoid (or respond to) OCR enforcement actions. In doing so, students (both victims and the accused), parents, alumni, the larger school community, and even the general public grew dissatisfied with what they perceived to be ineffective school rules that resulted in unfair enforcement as well as over and under punishment.
Whether adopted as proposed or modified after the close of the public comment period, the new regulations will undoubtedly stamp the process in which colleges and universities handle allegations of sexual misconduct for the foreseeable future.
In 2016, more than two years before OCR released the proposed regulations, the American Bar Association Criminal Justice Section constituted the Task Force on College Due Process Rights and Victim Protections (the Task Force) with one overarching objective: to provide a framework that would allow colleges and universities to handle and resolve sexual misconduct cases in a manner that respected the rights of both victims (as that term is used and understood under federal law) and the accused.
With diverse stakeholders from all across the higher education and legal community—including leaders from not-for-profit organizations, national experts, and tireless advocates for victims and the accused—the Task Force brought considerable firepower to bear.
Deep commitment to the mission of the Task Force, open-mindedness, and a willingness to compromise enabled the group in June 2017 issue unanimous, bipartisan Recommendations for colleges and universities handling reports of sexual misconduct. The Task Force’s Recommendations went on to be unanimously endorsed for publication by the ABA Criminal Justice Section Council, the governing body for the Section.
In all, the Task Force made recommendations in five separate areas and reached a total of 23 separate substantive and procedural recommendations. The Task Force’s Report and Recommendations not only enumerate these Recommendations, but also summarize the discussions and points of debate among the Task Force members on virtually every topic and the rationale behind each of the Recommendations ultimately agreed upon. Showing its work and how it arrived at its conclusions were no less important than the Recommendations themselves.
After publication, OCR studied the Task Force Report and Recommendations, met with members of the Task Force, among other stakeholder groups, and not only publicly praised the Task Force’s work, but also subsequently relied upon it in drafting the proposed regulation that just went through the notice and comment process in January 2019.
California Working Group
Furthermore, in 2018, California Gov. Jerry Brown (D) constituted a working group to make recommendations concerning how best to address allegations of student sexual misconduct on college and university campuses across California. In November 2018, the California working group adopted a number of the Task Force’s recommendations (either wholly or partially) and, in doing so, cited to the Task Force’s work 22 times.
For a detailed analysis of how the Task Force’s work has been adopted by OCR and the California working group, please see this comprehensive Practical Guidance article published by Bloomberg Law (subscription required).
Andrew S. Boutros, a partner at Seyfarth Shaw LLP, is the national co-chair of the firm’s White Collar, Internal Investigations, and False Claims Team. Boutros leads a firm-wide team of nearly 30 attorneys in all aspects of the firm’s white collar practice, including government enforcement defense, trials, internal investigations, false claims litigation, crisis management response, strategic counseling, and compliance-related work.
Bridget M. Maricich is counsel in the Labor & Employment Department of Seyfarth Shaw LLP’s Boston office. Prior to joining Seyfarth, Maricich served as the equal opportunity officer for policy and legal compliance for the University of Virginia and the University of Virginia Health System.
Eric J. Walz is an associate in the Litigation Department of Seyfarth Shaw LLP’s Boston office. His practice focuses on resolving civil and criminal disputes of all kinds.
Boutros served as chair of the ABA CJS Due Process Task Force and Maricich a voting member of the Task Force.