Since 2011 when the Obama administration heightened requirements for college campuses' handling of sexual misconduct under Title IX (the federal statute that prohibits discrimination based on gender in educational institutions), a national debate has raged between supporters of victims of sexual assault and those accused of sexual assault regarding the proper way to handle claims of sexual misconduct on college campuses.

The heightened requirements were designed to address underreporting of sexual assault on college campuses due to what's commonly referred to as rape culture. Colleges were required to investigate any possible sexual misconduct and to create detailed procedures for handling complaints of sexual misconduct, including investigations, hearings and appeals.

Since 2011 complaints, in large part from female students alleging sexual misconduct (complainants), have dramatically increased, as have complaints filed with the Office of Civil Rights and lawsuits in court by complainants alleging colleges had not adequately followed new federal requirements. In 2016, a wave of litigation by accused male students (respondents) ensued, alleging that colleges deprived them of due process in their sexual misconduct proceedings and favored complaints by females to avoid losing federal funding.

In September 2017, Betsy DeVos rescinded two Obama-era Office for Civil Rights sexual misconduct guidance documents, replacing them with guidance that provided greater procedural protections for accused students until proposed regulations could undergo a notice and comment period.

In November 2018, DeVos issued proposed regulations, which as of today have received more than 130,000 comments. Final regulations are anticipated to be published soon. Meanwhile, colleges continue to be barraged with complaints of sexual misconduct and, increasingly, counter- and cross-complaints by respondents, while litigation from both sides of the debate is increasing.

Most comments to the proposed regulations were negative, claiming that certain provisions could create significant chilling effects on the willingness of those who experience discrimination, harassment and sexual violence to report it to administrators and pursue formal resolution pathways. For examples, the proposed regulations provide a much more limited way in which schools are legally put on notice of sexual misconduct by its students, remove the prohibition on mediation in certain cases, and require live hearings and cross-examination of the complainant by the respondent's attorney. Indeed, while the bulk of the proposed rules broaden due process protections for accused students, they weaken protections for complainants.

Once published, the proposed regulations will likely lead to confusion about implementation and do nothing to reduce the number of complaints filed at colleges, the OCR and courts.

To date, colleges have missed an opportunity to implement an approach that would benefit both sides and create the desired culture change: a restorative justice approach (RJA). As an alternative option to the formal school investigation process, this approach should be considered in the form of an informal process or mediation as permitted by the 2017 OCR guidance, the proposed regulations and already in most college policies.

In the existing RJA models, both sides need to consent to this option (with supportive protections in place) to ensure that neither party feels coerced, and colleges could and generally do retain the right to continue with the formal process in those extreme cases where the college deems it necessary to protect the safety of its community. Typically, this process is confidential, and parties agree not to use any information obtained in this process in any other way, including in the formal process. Concerns about whether to make a statement either in the informal or formal process are the same for those students facing criminal charges. At any time, either party has the right to end the RJA informal process and enter the formal investigation process.

A RJA can take many forms but generally this approach brings together the complainants, the respondents and others harmed by the incident to explore the harm done and work together to repair it, using less traditional criminal processes and more public health approaches. Typically, RJAs provide the complainant the opportunity to tell her story, describe the impact of the harmful behavior and shape the consequences that the respondent could face. The respondent is given the opportunity to listen to the impact of his conduct, accept responsibility, if any, for his part, work collaboratively with everyone to determine how to remedy any harm caused and become a more responsible member of the campus community. This method enables both parties to understand each other's perspectives and each other's roles in the incident, to express compassion and perhaps remorse, and to work with each other to learn skills and behaviors that teach both to avoid situations that can lead to sexual harassment or misconduct.

A RJA allows complainants and respondents to avoid the ripping apart of the social fabric of their college experience and the consequent stigmatization or isolation that can occur when friends of the parties have to choose a side in a traditional investigative model. Likewise, many complainants undergo retraumatization from multiple interviews by unskilled investigators and a lengthy painful process over which they have little control with very little gain. Instead, an RJA helps with healing by putting a victim in control of the process and outcome, as well as providing a more effective way to get respondents to accept responsibility for any misconduct and understand what they did wrong, which could prevent assaults from occurring in the future, which is often a goal of a complainant. This approach often keeps an accused student in school and promotes learning and behavior change rather than the resulting suspension or expulsion from a finding of responsibility for sexual misconduct in the formal process.

Research in both academic and nonacademic settings shows that RJAs have been effective at decreasing recidivism rates and empowering victims. Colleges are uniquely suited to use this approach as RJAs meet their goal of educating students, responding to student needs and strengthening campus communities, all while effecting the very culture change that is the goal of Title IX. Rather than following the traditional formal processes and waiting for the fallout of the proposed regulations and ensuing litigation, colleges should employ restorative justice approaches as an early option for both parties now.