Are Campus Sexual Assault Tribunals Fair?: The Need for Judicial Review and Additional Due Process Protections in Light of New Case Law
By Emily D. Safko
The pervasiveness of sexual assault on college and university campuses and the schools’ failures to take sexual assault seriously have resulted in recent reforms to college campus disciplinary proceedings. The federal government has largely prompted this wave of reform through Title IX, requiring schools to employ particular policies and procedures for investigating and adjudicating sexual assault as a condition of receiving federal funds. Although the federal government’s mandates may be properly motivated, these reforms are criticized because they encourage schools to enact procedures that are heavily stacked against those accused of sexual assault. Consequently, students alleging that they have been wrongfully held responsible for sexual assault violations due to flawed disciplinary procedures have brought lawsuits against their schools. Recent case law demonstrates that some schools, in an attempt to comply with Title IX, have employed procedures that are fundamentally unfair to accused students.
This Note considers the interests involved in campus investigatory and adjudicatory systems through an analysis of recent cases and the procedural flaws that have emerged. It further evaluates procedural protections that would strike a better balance between the interests of the accusers, the accused, and the schools. In conclusion, this Note argues that in light of the recent case law, more meaningful judicial review and additional due process protections are necessary for accused students.