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Protecting due process in campus disciplinary proceedings is taking an increasingly bipartisan turn, with Louisiana joining Kentucky as states where Democratic governors signed legislation from Republican-led legislatures in just the first half of the year.
The moves complicate the Biden administration’s attempted rollback of its predecessor’s regulation on Title IX sexual misconduct proceedings, which required due process protections including live hearings, direct cross-examination and evidence-sharing.
Department of Education Office for Civil Rights Director Catherine Lhamon, who served the same role in the Obama administration, went so far as claiming in 2020 the newly finalized Trump administration regulation “permits students to rape and sexually harass with impunity.” She didn’t reject that assessment in a confirmation hearing last year.
The 60-day public comment period for the proposed new regulation, issued last month, has not started because it has not yet been published in the Federal Register.
Louisiana’s new due process protections for nonacademic proceedings at public colleges ( HB 364 ), like Kentucky’s law signed in April , are not specific to sexual misconduct proceedings but would neuter much of President Biden’s Title IX proposal for students in The Pelican State.
They include the “express presumption of innocence” for students and student organizations and the right to hire “an attorney or a non-attorney advocate who may fully participate” in proceedings or other procedures, including by cross-examining witnesses.
“Providing counsel to students that are faced with a disciplinary action is probably a very good thing,” University of Louisiana System President Jim Henderson testified at an April 27 committee hearing .
The students are typically 18-22 years old and “can feel intimidated” in proceedings, so letting them bring lawyers “really doesn’t hurt the process if our policies are well founded, well articulated, and we’re being objective in our approach,” he said, criticizing the “reflexive loss-mitigation approach” of administrators.Colleges must give […]
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