Section News

Colleges, Universities, and US Department of Education Turn to ABA CJS Task Force for Guidance on Adjudicating Campus Sexual Misconduct

Andrew S. Boutros and Tamara Rice Lave

In 2016, the ABA Criminal Justice Section constituted the College Due Process Rights and Victim Protections Task Force with one overarching goal: to provide a framework that would allow colleges and universities to fairly adjudicate sexual misconduct cases in a manner that respects the rights of both victims and the accused.

The Task Force brought together diverse stakeholders from across the higher education and legal communities. They included representatives of victims of sexual misconduct and those accused, university leaders, national experts, and leaders from not-for-profit organizations on both sides. The Task Force also had two voting members who were originally liaisons from the ABA Commission on Domestic and Sexual Violence and the ABA Section of Civil Rights and Social Justice.

The Task Force worked diligently and expeditiously, and in June 2017, it issued unanimous, bipartisan Recommendations for colleges and universities handling reports of sexual misconduct. The final product did not represent the views of just one person or even a group of people but the views of the collective whole, and it was the product of extensive discussion and compromise. Various stakeholders agreed to bend on certain provisions to obtain other provisions of importance to them and in order to reach unanimity. On May 6, the ABA Criminal Justice Section Council voted unanimously to endorse these Recommendations for publication.

The Recommendations have proved to be enormously influential. On September 22, 2017, the Department of Education, Office of Civil Rights (OCR) rescinded the 2011 Dear Colleague Letter, which had been criticized for not providing sufficient procedural protections for accused students. In November 2018, OCR issued a new set of proposed regulations, which relied heavily upon the ABA CJS Recommendations.

In addition, in 2018, California Governor Jerry Brown constituted a working group to make recommendations concerning how best to address allegations of student sexual misconduct on college and university campuses in California. On November 14, 2018, the California working group adopted many of the Task Force’s Recommendations (either wholly or partially) and cited to the Task Force’s work 22 times.

The Task Force’s groundbreaking work is demonstrative proof that when different stakeholders come together in good faith and with an open mind to find agreement on issues of public importance, the whole truly can be greater than the sum of its parts.

A copy of the Recommendations, as well as the Task Force’s roster and bios, are available at the ABA CJS website, “Task Force on Campus Sexual Misconduct.” (available at americanbar.org/groups/criminal_justice/committees/campus.) 

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Andrew S. Boutros

Andrew S. Boutros is partner and national co-chair of Seyfarth Shaw LLP’s White Collar, Internal Investigations, and False Claims Team. He was the chair of the Task Force. 

Tamara Rice Lave

Tamara Rice Lave is a professor of law at the University of Miami School of Law. She was the reporter for the Task Force.