What Is Due Process For The Accused In The Age Of #MeToo

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Last September, the Department of Education scrapped the Obama administration’s “Dear Colleague” letter, a guidance on how schools should handle sexual assault. Education Secretary Betsy DeVos cited concern for the accused. She said in a speech at George Mason University, “One person denied due process is one too many.”

But what is due process, and how does it work in the case of campus sexual assault investigations for school-aged children? We spoke to Professor William Koski, who runs the Youth and Education Law Project at Stanford University.

What is due process?

Due process means that the accused is treated fairly in the broadest sense. The idea is, we have an investigation process that seeks to ferret out the truth, that we have a fair hearing process that gives an opportunity for the accused to be heard and tell his or her side of the story, and [the accused] has the opportunity to confront the evidence that is [alleged] against him or her.

Why is due process difficult when it comes to sexual assault?

It’s tricky in a situation where we have sexual harassment and assault alleged, because we don’t want a victim to be re-traumatized. So due process has to look different in a situation like this. It may not be, you get to confront your accused in this situation… We have to be very sensitive to the victim and his or her needs.

In many college sexual assault investigations, the perpetrator has simply been kicked out of school. Why is K-12 different from college?

Going to college isn’t a right… You have the right to go to school [in] K-12, you have the obligation to, with our compulsory attendance laws… If the allegations are substantiated and the accountability has been completed in some way, that young person is coming back to school. We need to make sure that person is not derailed from education, not excluded and ostracized from that community. There has to be some way to bring restoration.


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