The changes would also do away with the problematic “single investigator system” where the person who interviews the witnesses and gathers the facts also serves as the judge and jury — a method the California State University System uses for its 485,000 students across 23 campuses.
The revisions are in line with court decisions that have characterized the current system as unfair. In August, the Court of Appeals for the Sixth Circuit, ruling in a case from Michigan, declared that if a public university adjudicates what is essentially a “he said, she said” case, “the university must give the accused student or his agent an opportunity to cross-examine the accuser and adverse witnesses in the presence of a neutral fact-finder.” This year, two California appellate courts have overturned university decisions to suspend students for committing sexual assault because their procedures were so lacking in basic due process.
Meanwhile, my client has been barred from campus for more than nine months. (His suspension was based on this allegation and a second allegation by another accuser, which was found to be unsubstantiated by the evidence; that accuser is appealing.) The DeVos regulations and the two California appellate rulings are most likely his only hope of avoiding an expulsion that would tar him as a campus sex offender and most likely prevent him from getting into another school.