Chapter 7 conducts part two of the deeper dive into the new regulations, but here the focus is on the changes made to the investigation and adjudication of sexual assault. The chapter explains the ways in which the new procedures differ from those under the 2011 Dear Colleague Letter, and how they better protect complainants and the accused. In considering the fairness of the new procedures, the chapter compares them to the consensus recommendations of the 2017 ABA Criminal Justice Section Task Force on Campus Due Process and Victim Protection. Along the way, suggestions are offered for how schools can implement the new regulations in a way that is compliant with those regulations but better protects the rights of victims and the accused.

Chapter 5 evaluates the fairness of DCL-influenced proceedings under two theories: violation of procedural due process and breach of contract for failure to comport with basic procedural fairness. The first, which is grounded in the U.S. Constitution, provides a stronger basis for recovery. However, it requires state action, which means it is probably only available to public school students. The chapter argues that under either theory, the procedural protections provided are inadequate.