Matt Kaiser and Justin Dillon in The Washington Post: Proposed Title IX Reforms Do Not Go Far Enough To Protect Due Process
On September 5, 2018, partners Matt Kaiser and Justin Dillon published an opinion piece in The Washington Post regarding the Education Department’s proposed new rules aimed at improving due process in campus sexual misconduct cases. While they are pleased with some aspects of the proposed reforms, they are concerned that the changes won’t do enough to restore fairness in Title IX cases.
Using examples from their experience in defending more than 100 students and professors nationwide, Mr. Kaiser and Mr. Dillon said that the current process on university campuses is in “shambles.” They endorse some of Betsy DeVos’s proposed reforms, like allowing parties in Title IX proceedings to cross-examine each other and obtain evidence like text messages and electronic communications.
But they challenged the usefulness of the idea that schools will be allowed to choose which standard of proof to apply in these cases, selecting either the “preponderance of the evidence” or the higher, “clear and convincing evidence” standard:
“In light of the cultural and political climate on campus, particularly in the aftermath of #MeToo, giving schools the option to choose among evidentiary standards is a meaningless gesture: Schools will always choose the lower standard, lest they be branded safe havens for rapists.”
Because of the life-altering ramifications of both sexual assault and being accused of this crime, Mr. Kaiser and Mr. Dillon argue that the most effective system should protect both those who have been assaulted and those who are wrongfully accused, and that the final regulations should have “sufficient teeth to protect the due process rights of every student and professor accused on campus.”