Responding to Judicial Scoldings, State Legislators Seek to Rein in Campus ‘Kangaroo Courts’

Contact: Rebecca Stewart

Telephone: 513-479-3335

Responding to Judicial Scoldings, State Legislators Seek to Rein in Campus ‘Kangaroo Courts’

WASHINGTON / August 13, 2018 – The movement to restore due process in campus sexual assault cases is gaining momentum, as lawmakers in several states have worked to restore due process and fairness in campus sexual assault proceedings. The trend began with California Governor Jerry Brown’s 2017 veto of a bill that would have solidified a number of anti-due process policies on campus. The trend is now being propelled by a surge of lawsuits by accused students against universities and colleges.

“In a stunning collective judicial rebuke to many campuses’ unfair treatment of students accused of sexual misconduct, courts have issued at least 102 rulings against universities since 2011, compared with 88 rulings in their favor,” notes a recent report (1). Many of the decisions were written using pointed language that was strongly critical of the university policies procedures. In 46 other cases, colleges have opted to settle the lawsuit prior to a judicial decision, rather than pursue expensive and potentially embarrassing litigation (2).

In two states, pro-due process bills have been introduced in 2018, but not enacted into law:

In South Carolina, House Bill 3303 would provide students with reasonable notice, a presumption of non-responsibility for the accused, the right to have an attorney who can participate in proceedings, and impartial fact-finders (3).

In Ohio, public colleges would be required to develop sexual-misconduct policies “with the goal of enhancing due process,” under a bill that has passed the House and moved to the Senate (4).

In Maryland, lawmakers took up Senate Bill 607, which required disciplinary proceedings to include a description of the rights for students and specified that an institution may not prevent a student from retaining an attorney. The bill passed both the Senate and House with strong bipartisan support (5).

In three other states, bills that erode due process protections have been sidelined:

In Massachusetts, the Democratic-controlled House of Representatives declined to take action on H.632, which had been previously passed by the state’s Senate. Critics of H.632 highlighted the flaws of trauma-informed training for investigators, a provision that had been derided as “junk science.” (6)

In Colorado, House Bill 18-1391 was approved in the House. But the bill failed to include sufficient due process protections, so the bill it was significantly amended in the Senate, resulting in the bill’s postponement (7).

In West Virginia, House Bill 2825, a bill that would have mandated problematic “affirmative consent” polices at the state’s colleges, was not voted upon prior to adjournment of the legislative session (8).

A summary of the current status of the campus sexual assault bills introduced in 2018 is available on the SAVE website (9).

Citations:

SAVE — Stop Abusive and Violent Environments — is working for effective and fair solutions to domestic violence and campus sexual assault: www.saveservices.org

News and Commentary