In September, the US Department of Education announced it was rolling back Obama-era rules that aimed to prevent campus sexual violence. Canadians should take notice.

In 2011, the Obama administration announced that it was taking a bold and aggressive approach to Title IX, an American law requiring gender equity in federally funded education programs. US schools needed to take immediate and effective steps to end campus sexual violence or else they could lose federal funding. In response, colleges and universities scrambled to create policies for handling student complaints.

These rules have now been rescinded. Speaking to law students at George Mason University, Secretary of Education Betsy DeVos explained her reasons for the change: ‚ÄúThe notion that a school must diminish due process rights to better serve the ‚Äėvictim‚Äô only creates more victims.‚ÄĚ

The move has inspired a fierce backlash among student activists ‚ÄĒ and rightly so. The Trump administration has given us little reason to believe that it takes gender equality seriously, while the scourge of sexual assault remains as troubling as ever. Clearly, schools have an institutional responsibility to protect their students from harm and provide a safe place for women to study and to work. Campus sexual violence policies are crucial to this effort. Many of the Obama-era measures provided schools with useful guidance on what their policies should contain, and the Trump administration is wrong to reverse them.

But Secretary DeVos is right about one thing. Campus adjudication has not always been fair to the accused. Facing the threat of lost funding under the previous administration, some US schools adopted policies that failed to provide students with notice of the allegations against them, the opportunity to respond or the right to legal counsel, before their cases were decided and the students were expelled.

Canadian schools should learn from the American experience. Gender equality and due process are not mutually exclusive. Protecting survivors through a campus sexual violence policy should not require us to treat accused persons unfairly in campus adjudication. Justice for some students cannot mean injustice for others.

Three provinces ‚ÄĒ Ontario, British Columbia and Manitoba ‚ÄĒ have passed legislation requiring post-secondary institutions to implement stand-alone campus sexual violence policies that include education and training, community supports and response protocols. Quebec has announced plans to follow suit shortly. Another province, Nova Scotia, has signed a memorandum of understanding that requires post-secondary institutions to create their own policies. Other provinces have encouraged political organizing on the issue in other ways. For example, Alberta‚Äôs minister of advanced education directed colleges and universities in September 2016 to have policies in place by the spring of 2017.

In response to these efforts and sustained political pressure from student activists across the country, most colleges and universities in Canada have now adopted campus sexual violence policies. This is a huge step forward for gender equality. It means that more survivors will be believed. It means that fewer complaints will be swept under the rug. It means that more offenders will be held accountable for their actions. While these are vitally important goals, there is more work to be done to ensure that our policies avoid the excesses of Title IX enforcement.

The problem is that our provincial laws are silent on what campus adjudicative processes should look like. This has left academic administrators to fill the gap. While several government agencies and advocacy groups have issued optional guidance to schools, it is unclear how the schools’ compliance with the laws will be monitored and enforced by the state. This means that colleges and universities have seemingly been granted broad discretion to handle complaints as they see fit under the laws. As a result, procedures for handling student complaints vary widely from school to school.

Some campus sexual violence policies state the requirements of procedural fairness in campus adjudication specifically. These schools are more likely to see justice done for all students, including survivors. Other policies are vaguer, committing to the general principle of fairness without providing concrete guarantees. These schools are more likely to overreach.

The problem is made worse because it is so difficult to track. Campus adjudication is private and takes place outside the courts, barring the exceptional case in which decisions are appealed and become part of the public record. Without a clear system of oversight in place, we need to trust that our schools are getting this right.

The requirements of fairness in this context are simple. Students should be entitled to receive notice of complaints and the procedures available to address them. Students should be given the opportunity to submit evidence and make submissions in their own defence. Students should have the right to legal counsel throughout. Adjudicators should be, and should be seen to be, impartial at all times. Finally, the procedures should be transparent to the public, without sacrificing confidentiality, which can be important to survivors in many cases.

Gender equality should not be a controversial issue. Fair process should not be either. Schools should revise their policies to ensure that they respect both.

Photo: Montreal, HEC Montréal, Université de Montréal.  Shutterstock, by EQRoy.

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Daniel Del Gobbo
Daniel Del Gobbo is a Pierre Elliott Trudeau Scholar at the University of Toronto Faculty of Law. He writes and teaches about legal process, equality law, and access to justice in Canada, with a particular focus on the legal regulation of gender and sexuality.

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