DOE Invites Comments on Proposed Sexual Assault Regulations

Glenn Ricketts

The Office of Postsecondary Education of the US Department of Education has published a set of proposed new regulations with potentially significant implications for sexual assault policies on college campuses.  The proposals (access them here.)  follow recent congressional amendments to the Clery Act, a 1990 federal statute which requires colleges and universities to compile and report campus crime statistics to the DOE.  The department has actually solicited comments from interested parties, and these may be submitted per the accompanying instructions.  The document, as you’ll see, is a bit unwieldy at 244 pages, but it’s well worth reading. Our friends at FIRE, who have been closely monitoring the process that produced the draft proposals, have found some positive aspects to the proposed regulations which, among other changes, would allow both parties in cases of sexual misconduct have an advisor of their own choice present during formal hearings.  That’s by no means the case at present, since many campus tribunals require the accused to appear alone without assistance.  The new regulations also propose that “sexual assault” be defined according to recent criteria adopted by the FBI.  That would be a major improvement over the protean imprecision that characterizes so many current campus codes, and usually tilts decidedly against the accused.

The fact that OPE has requested public comment stands in striking contrast to the unheralded ukases we’ve been getting for several years from the Office for Civil Rights, also a division within the Department of Education.   Once, OCR did solicit comments in anticipation of issuing new regulations, but hasn’t done so for some time.  Starting with its April 2011 “Dear Colleague” letter to college and university administrators, the agency has been simply issuing marching orders as a done deal, often carrying major policy shifts concocted strictly in-house.  That’s how OCR did it in April, when its latest set of policy guidelines was published as a straightforward edict, no questions asked.

OPE has asked, however, and we plan to respond.  Readers who share our concern about the erosion of due process in campus judicial procedures should consider doing likewise.

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