Campus Sexual Assault Adjudication: Why Universities Should Reject the Dear Colleague Letter

47 Pages Posted: 6 Jul 2016

See all articles by Tamara Rice Lave

Tamara Rice Lave

University of Miami, School of Law

Date Written: July 2, 2016

Abstract

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.

Suggested Citation

Lave, Tamara Rice, Campus Sexual Assault Adjudication: Why Universities Should Reject the Dear Colleague Letter (July 2, 2016). Kansas Law Review, Vol. 64; University of Miami Legal Studies Research Paper No. 16-30. Available at SSRN: https://ssrn.com/abstract=2804039

Tamara Rice Lave (Contact Author)

University of Miami, School of Law ( email )

P.O. Box 248087
Coral Gables, FL 33146
United States

HOME PAGE: http://www.law.miami.edu/facadmin/tlave.php

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