Congress Introduces Second Campus Due Process Bill: The Fair Campus Act

Last week, Congress introduced the the Safe Campus Act (H.R. 3403), a bill that would address campus sexual assault, while providing accused students meaningful due process protections. In another welcome development, a second bill, the Fair Campus Act (H.R. 3408), sponsored by Representatives Pete Sessions and Susan Brooks, was also introduced last week.

The Fair Campus Act differs from the Safe Campus Act in only one way. Under the Safe Campus Act, campuses are precluded from conducting disciplinary hearings regarding allegations of sexual assault unless the complainants report the allegation to law enforcement first. The Fair Campus Act does not include that provision.

Both bills would provide accusing and accused students with the right to hire lawyers to actively represent them in the campus hearings and the right to examine witnesses, and both bills would require institutions to make inculpatory and exculpatory evidence available to all parties. The bills would also reduce conflicts of interest by prohibiting individuals from playing multiple roles in the investigatory and adjudicatory process—preventing, for example, an investigator from serving as an adjudicator.

Another helpful provision in both bills would provide a safe harbor to students who either report or are witnesses to allegations of sexual assault made in good faith, so that they could not be disciplined by their institution for non-violent violations of the student code discovered as a result of investigations into the allegations. This provision will undoubtedly help students come forward with information, to everyone’s benefit.

In addition to these important provisions, each of the bills would repeal the Department of Education’s Office for Civil Rights’ (OCR) misguided and unlawfully imposed preponderance of the evidence mandate, returning the decision as to which standard of proof to use in these cases to individual states, campus systems, or individual campuses.

For a more thorough analysis of the due process provisions in these bills, check out my blog post from last week on the Safe Campus Act.

FIRE is pleased that Congress is finally considering legislation that addresses campus sexual assault in a manner that takes the needs of all affected parties into account. One of our standing criticisms of the Campus Accountability and Safety Act (CASA) is that it lacks the meaningful due process protections that fundamental fairness demands. The due process provisions of the Safe Campus Act and the Fair Campus Act are essential to ensuring that campus procedures are fair to all.

Reasonable minds may disagree as to how to best respond to campus sexual assault, but it is hard to ignore the consensus that the status quo is unacceptable. As I wrote last week, hopefully the best provisions of each of the campus sexual assault bills pending in Congress will be included in a final bill that comprehensively meets the needs of all students. The introduction of the Safe Campus Act and the Fair Campus Act are important steps towards realizing that goal.