The due process movement is picking up steam and producing results. Thanks to the tireless work of advocates, attorneys, academics, and reporters, discussion of the issue has been pushed from fringe awareness into the mainstream. Hundreds of lawsuits have been filed at the federal and state level in recent years, with a preponderance of them finding success in some form. The Department of Education is working on instituting new rules that provide (among other things) higher evidentiary standards, cross-examination, and timely notice. Lastly, new legislation is being introduced at the state level. I’ll mention a few here.

Missouri has seen two proposed bills. As reported in The Missouri Times:

Sen. Gary Romine and Rep. Dean Dohrman filed nearly identical bills in their respective chambers. HB 573 and SB 259 provides students in higher education due process protections and allows students to request that Federal Title IX procedural hearing be heard before the Administrative Hearing Commission.

The bill would enable students in an institute of higher education that, past or present, has received a disciplinary action in a Title IX to appeal to the Administrative Hearing Commission. It sets forth hearing procedures for Title IX formal complaints.

Under the legislation, the decision-maker or decision-makers shall apply the clear and convincing evidence standard to reach a determination.

Recently, House Bill 305 was introduced in North Carolina. As reported by The News & Observer, it would ensure the following:

1. Students are promptly notified when accused of sexual misconduct, including details of allegations, alleged violations of the Student Code of Conduct and copies of evidence against them. Students must be told of their right to consult an attorney and to have one accompany them through the process, and of their right to appeal findings of misconduct.

2. Parties to an investigation are allowed to question and cross-examine witnesses.

3. The investigation and any hearing must be impartial, and the person who investigates the allegations cannot also be the finder of fact at the subsequent hearing.

4. Findings from the investigation and hearing must be written and provided to both the complainant and the accused to allow for review on appeal.

5. The standard of proof will be “clear and convincing evidence,” a higher standard than is now applied.

West Virginia saw SB479 introduced on January 30th. This bill ensures the following:

1. Respondents will be provided with notice that is both timely and detailed
2. notice (detailed notice per se being an underrated element)
3. Accused students will have meaningful access to investigation records
4. Extensive support by an attorney or advocate

In Virginia, HB 1830 and HB 1831 were proposed to strengthen due process elements such as timely notification and attorney assistance. It appears these bills have stalled, but the uptick in such proposals is noteworthy.

All of these have been proposed within the last four months. More are sure to follow. At this point, opponents of due process as far more numerous and well-funded, as they always have been. But the momentum has been growing, and it can no longer be ignored.

Arguably, if supporters of the Dear Colleague Letter had sought incremental change instead of instant overreach – or at least offered policies that were a bit more even-handed – we might not be seeing this level of progress right now. The Dear Colleague Letter’s legacy will be that it casts in stark relief the necessity of civil liberties like due process, creating a generation of advocates and an extensive catalog of antithetical judicial opinions that will not be diminished in influence any time soon.