Mar 28 2023
WASHINGTON – Sen. John Kennedy (R-La.), a member of the Senate Judiciary committee, today introduced the Ensuring Fairness for Students Act to codify due process in Title IX proceedings for students who are accused of sexual assault or harassment on school campuses. The bill would require schools to investigate and adjudicate formal complaints.
“The Biden White House wants to roll back fair proceedings on school campuses by making students guilty until proven innocent. That is not justice. Students’ rights don’t end where schools begin, and this bill makes sure that these serious investigations pursue justice without bias,” said Kennedy.
A recent study found that many of the nation’s top colleges and universities fall short of safeguarding due process rights in disciplinary proceedings that involve students. For example, 72 percent of the schools in the study “failed to provide ‘timely and adequate notice of the allegations to students accused of wrongdoing before expecting them to answer questions about the incident.’” At more than 60 percent of these schools, an explicit guarantee of the presumption of innocence “doesn’t extend across all disciplinary policies.” In fact, only 15 percent “guaranteed ‘a meaningful hearing, where each party may see and hear the evidence being presented to fact-finders by the opposing party, before a finding of responsibility.’”
The Biden administration is working to reverse policies that were established under the last administration and have been improving due process protections at colleges and universities.
The grievance process under the Ensuring Fairness for Students Act would:
- Provide both parties with a written notice of the allegations, an equal opportunity to select an advisor of each party’s choice and an opportunity to submit evidence throughout the investigation.
- Require schools to use trained Title IX personnel to evaluate all evidence objectively.
- Protect parties’ privacy by requiring written consent before using any medical, psychological or other treatment records during a grievance process.
- Ensure a presumption of innocence so that schools apply evidence correctly and bear the burden of proof.
- Ensure the decision-maker is distinct from the person investigating the allegation and from the Title IX coordinator.
- Require a live hearing and allow cross-examination by each party’s advisors, but never by the party himself or herself.
- Offer both parties an equal opportunity to appeal.
- Protect any individual, including complainants, respondents and witnesses, from retaliation for reporting sexual harassment or participating, or refusing to participate, in any Title IX grievance process.
- Require schools to document and keep records of all sexual harassment reports and investigations.
- In June 2022, the Biden administration announced a rule to roll back policies that ensure due process for sexual assault proceedings under Title IX.
- The Biden administration’s rule would offer the accused no right to cross-examine witnesses and no right to a public hearing. It would also allow one individual to investigate a case, bring charges in the case and decide the outcome of the case.
Full text of the legislation is available here.