At today’s Annual Meeting, members of The American Law Institute voted to approve the Principles of the Law, Student Sexual Misconduct: Procedural Frameworks for Colleges and Universities.
This subject matter involves sources of law that are in the midst of rapid evolution. In recent years, the legal landscape facing colleges and universities has changed dramatically, as a result of new case law, new state and federal legislation, and shifting federal guidance and regulation that continues to evolve today.
The project launched in 2015, led by Reporter Vicki C. Jackson of Harvard Law School and Associate Reporter Suzanne B. Goldberg of Columbia Law School. Professor Goldberg stepped down from the Principles project in January 2021 after joining the Biden Administration as Deputy Assistant Secretary for Strategic Operations and Outreach at the U.S. Department of Education’s Office for Civil Rights. Professor Jackson stepped down as Reporter in December 2021, becoming a Consultant to the project. In October 2021, Professor E. Thomas Sullivan, President Emeritus and Professor of Law and Political Science at The University of Vermont was appointed Reporter, having served as a longtime Adviser to the project.
“The legal landscape has changed considerably in the seven years since the project was launched,” explained ALI Director Richard L. Revesz. “In particular, there was a proliferation of due-process challenges to institutional adjudicatory provisions. And, under the Trump Administration, the Department of Education withdrew the prior guidance materials that had played a significant role, at the time we launched the project, in determining how colleges and universities structured their procedural frameworks in this area; it followed suit in May 2020 by promulgating a set of regulations. In turn, the Biden Administration launched a comprehensive review of these regulations, which is ongoing. Our draft acknowledges the regulatory regime and indicates where our best practices differ from the regulations currently in effect. I am enormously grateful to Professors Jackson, Sullivan, and Goldberg, as well as to their dedicated Advisers and Members Consultative Group for their successful navigation of this very complicated subject.”
“I am delighted to have signed on as a Reporter for Principles of the Law, Student Sexual Misconduct: Procedural Frameworks for Colleges and Universities,” said Professor Sullivan. “I would like to thank Vicki Jackson and Suzanne Goldberg for their incredible work. I speak for all of us when I say that we believe that school administrators in large and small, and public and private colleges and universities will greatly benefit from this guidance that seeks to harmonize current understanding and policies in this difficult area.”
These Principles’ scope of inquiry concerns issues of procedure for responding to, investigating, and resolving allegations of misconduct, rather than the efforts that should be made to help prevent those occurrences through measures affecting the general campus environment, or the substantive standard that should apply to the conduct at issue. The project does not address the correct substantive definitions of the prohibited conduct in college and university settings.
The Tentative Draft presented and approved by the ALI membership includes the complete project, which is divided into 10 Chapters: First Principles for Procedural Frameworks; Notice and Clarity of Policies; Consistency of Implementation; Support and Interim Measures; Reporting of Sexual Assault and Related Misconduct; Inquiries and Investigations; Informal Resolution of Sexual-Misconduct Reports and Complaints; Formal Resolution of Sexual-Misconduct Complaints; Sanctions; Appeals; Integrity of the Process: Confidentiality, Disclosure, Misrepresentation, Retaliation; and Internal Student Discipline and the Criminal Justice System.
The Reporters, subject to oversight by the Director, will now prepare the Institute’s official text for publication. At this stage, the Reporters are authorized to correct and update citations and other references, to make editorial and stylistic improvements, and to implement any remaining substantive changes agreed to during discussion with the membership and Council, or by motions approved at the Annual Meeting. Until the official text is published, the draft approved by the membership and the Council is the official position of ALI, and may be cited as such.