New Violence Against Women Act reauthorization compromises due process in higher education

On March 15, President Biden signed into law a $1.5 trillion omnibus package passed by Congress that included the Violence Against Women Act Reauthorization Act of 2022. As its name suggests, the enacted text reauthorized the Violence Against Women Act, a 28-year-old law that seeks to combat gender-based violence in various settings. 

Although FIRE does not take a position on the vast majority of the new language in VAWA, some new provisions have broad implications for institutions of higher education because they directly impact due process on college and university campuses. 

The VAWA reauthorization includes language that amends sections of the original bill that provided competitive grants to institutions of higher education to combat sexual assault on campus. One provision, which amends Section 41201(b) of VAWA, includes the following to describe an intended use of the grants: 

(12) To train campus personnel in how to use a victim-centered, trauma-informed interview technique, which means asking questions of a student or a campus employee who is reported to be a victim of sexual assault, domestic violence, dating violence, or stalking, in a manner that is focused on the experience of the reported victim, that does not judge or blame the reported victim for the alleged crime, and that is informed by evidence-based research on trauma response. To the extent practicable, campus personnel shall allow the reported victim to participate in a recorded interview and to receive a copy of the recorded interview.

If this new provision is interpreted to include adjudicators, such training could ingrain the disciplinary process with bias, especially if adjudicators are trained to assess testimony in a manner favorable to one party or to use the existence of trauma as a substitute for evidence that an incident occurred. 

Bias in the disciplinary process comes at a cost for all involved, including the complainant.

Writing for the Harvard Law Review, Harvard Law School professor Janet Halley, for example, analyzed the bias present in Harvard Law School’s 2014 training materials on the effect of trauma while detailing the complexities of campus sexual assault. She explained that the training provided to Harvard personnel handling sexual harassment claims in 2014 “is 100% aimed to convince them to believe complainants, precisely when they seem unreliable and incoherent. Without disputing the importance of the insights included in this section of the training, one can ask: precisely what do they prove? Surely not a claim that, because a complainant appears incoherent and unreliable, she has been assaulted.”

Bias in the disciplinary process comes at a cost for all involved, including the complainant. As we have observed, unfair procedures “damage the credibility of campus proceedings and diminish public confidence in their results.” 

Without procedural fairness, the outcome of a proceeding is more likely to be overturned by either the institution or a court, forcing the complainant to go through the process repeatedly.

Training and use of a “victim-centered, trauma-informed interview technique” would pose an even greater threat to impartiality if the Department of Education were to reverse course and amend the Title IX regulations to again allow institutions to use a single-investigator model in the Title IX disciplinary process. Under the single-investigator model, a single individual both investigates and adjudicates a claim. Current Title IX regulations, which were implemented by the Department of Education’s Office for Civil Rights in August 2020, explicitly provide that the decision-maker(s) “cannot be the same person(s) as the Title IX Coordinator or the investigator(s).” 

However, given that the Department of Education has announced its plans to issue new Title IX regulations, FIRE will continue to monitor any changes in the regulatory requirements imposed on institutions of higher education that impact the due process protections afforded students in the disciplinary process.