States Take the Lead in Making Campus Due Process the Law of the Land

Contact: Rebecca Stewart

Telephone: 513-479-3335

States Take the Lead in Making Campus Due Process the Law of the Land

WASHINGTON / February 19, 2019 – In response to growing public concern over the abuses of campus “Kangaroo Courts,” a growing number of states are working to establish policies designed to assure due process protections for both complainants of sexual assault and accused students.

Thus far in 2019, bills designed to promote campus due process have been introduced in four states:

Missouri: SB 259 and HB 573 would implement a process for due process proceedings for Title IX complaints at institutions of higher education (1).
South Carolina: HB 3303, the Disciplinary Due Process Act, would require notice, review of evidence, 20-day notice prior to the hearing, and notarization of written statements (2).
Virginia: HB 1820, which applies to sexual violence cases, would require fair and impartial investigations, access to evidence, prompt and equitable hearing and timely notice; and permits representation by active counsel (3). HB 1831, which applies to proceedings not involving sexual violence, would require due process rights, permit active counsel, and allow for Alternate Dispute Resolution (4).
West Virginia: SB 479 would require elements of due process, and create a subsidized program for attorney advisors (5).

In California, a working group appointed by former governor Jerry Brown issued recommendations regarding the need for written notice, investigator independence, role of “trauma-informed” investigations, hearings, right to counsel, and restorative justice (6).

Five states have previously enacted campus due process legislation: Arkansas, California, Maryland, North Carolina, and North Dakota (7). In addition, appellate judges have rendered decisions that require due process protections on campus in the following states: Connecticut, Kentucky, Louisiana, Maine, Massachusetts, Michigan, New Hampshire, New York, Ohio, Rhode Island, Tennessee, Vermont, and Washington (8).

At the federal level, the Department of Education has issued proposed Title IX regulations aiming to assure due process on campus (9). The Comment period for these regulations concluded this past week.

As a result of the combined effect of state legislation, appellate court decisions, and proposed federal regulations, campus due process is now becoming the law of the land.

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