Federal guidlines on college sexual assault may become law

The judge found that Doe had alleged a lack of both procedural and substantive fairness in Brandeis’ process. Procedurally, the court faulted the same issues we have long found concerning about school sexual assault policies:

Failure to provide a thorough account of the charges to Doe (specifically finding unfairness when the school “refus[ed] to provide him with the specific factual conduct alleged to have given rise to the charge”).
No right to counsel (“[Brandeis] expected a student, approximately 21 years old, with no legal training or background, to defend himself, alone, against those same charges.”)
No right to confront accuser (“The entire investigation thus turned on the credibility of the accuser and the accused. Under the circumstances, the lack of an opportunity for cross-examination may have had a very substantial effect on the fairness of the proceeding.”)
No right to examine witnesses (“John was not provided an opportunity to cross-examine any of those witnesses, or indeed to be advised of the substance of their testimony.”)
No right to examine evidence or witness statements (“John had no opportunity to review any statements [witnesses] may have provided.”)
Impairment of right to call witnesses and present evidence (“John was not informed of the details of the case against him until after the Special Examiner had prepared her Report . . . John then attempted, unsuccessfully, to submit additional evidence . . .”)
No access to Special Examiner’s report (“He was thus forced to defend himself in the sanctions phase of the proceeding, and to prepare his appeal, without access to the very document in which his guilt was determined.”)
No separation of investigatory, prosecution, and adjudication functions (“The dangers of combining in a single individual the power to investigate, prosecute, and convict, with little effective power of review, are obvious. No matter how well-intentioned, such a person may have preconceptions and biases, may make mistakes, and may reach premature conclusions.”)
No right to effective appeal (“Conspicuously absent from the list is the ability to appeal on the ground that the Special Examiner’s decision was not supported by the evidence, or that it was otherwise unfair, unwise, or simply wrong.”)
Lowered burden of proof to the “preponderance of the evidence” (“Here, however, the lowering of the standard appears to have been a deliberate choice by the university to make cases of sexual misconduct easier to prove . . . .”)

The judge then turned to the question of whether the proceeding that Brandeis subjected Doe to was substantively fair. He determined that there was “reason to believe that the Special Examiner decided John’s guilt to a substantial degree on unfair generalizations, stereotypes, or logical fallacies.” The judge noted, in particular, the following:

That the Special Examiner failed to consider why the complainant entered into a 21-month long relationship with Doe after allegedly being assaulted, and failed to report the assault or any other misconduct for two years, and instead dismissed those facts based on generalizations about how some victims of inter-partner violence act.
That the Special Examiner “entirely dismissed the significance of the long-term relationship in evaluating John’s behavior,” when, according to the judge “[n]ormally, over the course of a long relationship, the parties develop implicit and explicit understandings that affect their behavior, including certain forms of non-verbal consent . . . . the existence of a relationship does not give someone the right to commit sexual assault. But neither is it meaningless and irrelevant when evaluating the question of consent.”
That the Special Examiner decided the complainant’s abuse of alcohol after his relationship with Doe ended bolstered his claim that he was sexually assaulted, which the judge decried as “application of broad generalizations or post hoc ”

"I've been predicting that by 2030 the largest company on the internet is going to be an education-based company that we haven't heard of yet," Frey, the senior futurist at the DaVinci Institute think tank, tells Business Insider.

A wave of bills dealing with campus sexual assault are moving through state legislatures, and many of them would codify elements of contentious federal guidelines that deprive accused students of due process rights.