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Dept. of Education Rulemaking Session Ends on Positive Note for Student Due Process Rights

April 2, 2014

WASHINGTON, April 2, 2014—Yesterday, the last of three “negotiated rulemaking” sessions over new requirements for campus safety rules imposed by last year’s Violence Against Women Act reauthorization closed with good news for student rights.

Specifically, the negotiators reached consensus on a draft regulation that requires colleges to allow both complaining and accused students to be accompanied in disciplinary hearings by the advisor of their choice—including attorneys. The final draft also discarded an effort earlier in the session to interpret the law as requiring the low “preponderance of the evidence” standard to be used in campus sexual misconduct proceedings, according to Inside Higher Ed. The Foundation for Individual Rights in Education (FIRE) attended each hearing and advocated for these changes.

(The final version of the regulations agreed upon by negotiators had not been posted by the Department of Education at the time of this release. The penultimate version of the draft is available here.)

“While not a panacea, this is a major, positive step forward for due process rights on campus,” said Joe Cohn, FIRE’s director of legislative and public policy. “Too many colleges completely ban attorneys from disciplinary hearings, even when the misconduct at issue is also a felony. FIRE is glad that the Department of Education and the negotiators recognized that students dealing with such serious, life-changing matters—either as complainants or as the accused—need the right to have an attorney advise them.”

The regulations allow individual schools or states to determine if attorney advisors may fully participate in campus hearings or may simply provide advice. This advice is particularly important when students face concurrent criminal charges, as campus judiciaries frequently fail to provide students with a meaningful right against self-incrimination, and testimony heard in campus tribunals is generally admissible in criminal proceedings.

FIRE staff members were joined in the rulemaking session by students and mothers of students who say they have been erroneously found responsible for campus misconduct, including a former Auburn University student whose story was featured in The Wall Street Journal last December.

The draft rule will now return to the Department of Education, which will publish it in the Federal Register and solicit formal written comments on the draft.

FIRE is a nonprofit educational foundation that unites civil rights and civil liberties leaders, scholars, journalists, and public intellectuals from across the political and ideological spectrum on behalf of individual rights, freedom of expression, academic freedom, due process, and rights of conscience at our nation’s colleges and universities. FIRE’s efforts to preserve liberty on campuses across America can be viewed at thefire.org.

CONTACT:
Joe Cohn, Director of Legislative and Public Policy, FIRE: 215-717-3473; joe@thefire.org

Cases: U.S. Department of Education’s Office for Civil Rights April 4, 2011, Guidance Letter Reduces Due Process Protections