Supreme Court Commentaries
Due Process, campus sexual assault, Fifth Amendment, Fourteenth Amendment
College women experience rape and sexual assault at alarmingly high rates. One highly publicized statistic, famously asserted by President Obama, states that one in five women experience sexual assault while attending college. In 2011, the U.S. Department of Education radically expanded its involvement in campus sexual misconduct adjudications, encouraging vigorous enforcement. Sustained regulatory and public pressure effectuated some positive change for victims. However, a proliferation of litigation also followed. Students found responsible of campus sexual assault, most of whom were males, increasingly began suing their schools alleging due process violations in their adjudications. In 2018, the Trump administration's Department of Education proposed a new rule (the "Proposed Rule"), in part to strengthen what it perceived as procedural deficiencies in the regulatory landscape established by the previous administration. This Note analyzes the extent to which the Proposed Rule brings the scales back to equipoise by strengthening the due process rights for the accused, and where the Proposed Rule falls short of sufficiently supporting the victims. The Proposed Rule appropriately affords basic due process rights that were either explicitly or implicitly lacking under the old regime, but in some instances the Proposed Rule overreaches at the expense of the victims.
Ilana Frier, Campus Sexual Assault and Due Process, 15 Duke Journal of Constitutional Law & Public Policy Sidebar 117-143 (2020)