Campus Sexual Assault Adjudication: Why Universities Should Reject the Dear Colleague Letter
Kansas Law Review, Vol. 64
47 Pages Posted: 6 Jul 2016
Date Written: July 2, 2016
This Article contends that although well intentioned, the mandates of the Dear Colleague Letter (DCL) are not the best way to handle campus sexual assault. Universities should have a number of different options available, from restorative justice processes to a full-blown adjudicatory hearing. When suspension or expulsion may result, the respondent should have the right to an adjudicatory hearing with robust procedural rights. More controversially, this Article argues that despite the DCL, universities are legally entitled to make these changes.
This Article begins by situating university disciplinary proceedings legally and historically. It then turns to the DCL. It discusses whether OCR violated the Administrative Procedure Act (APA) by not going through notice and comment. After determining that the DCL is procedurally invalid, the Article discusses how universities can and should handle these cases while still remaining in compliance with Title IX. The Article concludes by acknowledging that even if schools would be allowed to make these changes they are unlikely to do so because of the considerable social (and indirect economic costs) in challenging the Department of Education.
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