News & Politics

Due Process Rights Under Assault at Two Universities

Education Secretary Betsy DeVos speaks about campus sexual assault and enforcement of Title IX, the federal law that bars discrimination in education on the basis of gender, Thursday, Sept. 7, 2017, at George Mason University Arlington, Va., campus. (AP Photo/Jacquelyn Martin)

Parents, want to avoid having your kids unjustly accused of sexual assault? You might want to think twice before sending them to the University of Colorado and the University of Cincinnati. Colorado’s refusal to rescind its Obama-era guidelines that deny students basic due process rights and impose kangaroo courts should scare any parent whose son is thinking of going there. And a recent decision by the Sixth Circuit Court of Appeals against Cincinnati shows that the school’s tribunal system resembles the procedures in Franz Kafka’s The Trial.

In 2011, the Obama administration issued guidelines to universities that threatened them with a loss of federal funding unless they lowered the evidence standard needed to convict a student of sexual misconduct, and cut back on the due process rights of students. To comply, as explained in a recent Heritage Foundation study, universities implemented rules that prohibited accused students from cross-examining their accusers or having legal representation in the tribunals. They also made other changes such as imposing “gag” orders that deprived students of the ability to obtain evidence to support their claims. These rules were almost universally criticized in liberal and conservative quarters by lawyers, law professors, and even the American College of Trial Lawyers.

Recently, Betsy DeVos, secretary of the Department of Education, rescinded these flawed guidelines and issued new interim guidelines recommending changes designed to provide students with their basic due process rights.

Her guidelines also recommended that universities use the higher evidence standard applied to criminal cases (since sexual assault is a crime), or to at least apply the same evidence standard used for other student misconduct cases.

As the new guidelines note, a lower standard for sexual misconduct is evidence of:

… an effort to tilt the playing field against accused students, which is particularly troublesome in light of the elimination of other basic rights of the accused.

Yet the University of Colorado has refused to adopt them, announcing instead that it will stick to the discredited Obama-era rules.

The university’s Title IX coordinator, Valerie Simons, claimed their procedures provide accused students with a “prompt, equitable and fair process.” What Simons considers “equitable” and “fair” is a process, according to the school’s “Process and Procedures 2017-2018,” that does not allow the accused student to cross-examine the accuser or witnesses or allow his lawyer “to participate instead of the … respondent.”

A student doesn’t even get access to all of the evidence against him. His access is limited to a “Written Evidence Summary” prepared by a university official, leaving the student at the mercy of what university officials such as Valerie Simons consider relevant to the case. The university procedures don’t meet the most basic due process requirements as outlined in recommendations made by the American College of Trial Lawyers in a white paper the organization published on how to conduct campus sexual assault investigations.

The University of Cincinnati, meanwhile, has just lost a case that should scare any prospective students. In John Doe v. University of Cincinnati, the Sixth Circuit Court of Appeals upheld an injunction issued against the university to prevent it from suspending a student for two years. The student, John Doe, had sex with Jane Roe at his apartment after meeting on Tinder and having communicated for several weeks. Three weeks later, Roe complained that Doe had sexually assaulted her.

The University of Cincinnati’s rules are similar to those of the University of Colorado. Doe had no opportunity to question Roe, because she didn’t bother to show up for the campus tribunal’s hearing. He couldn’t even question any witnesses directly; an accused student can only submit written questions to the tribunal, which then decides whether the questions are “relevant and whether they will be posed to the witness.” Witnesses don’t even have to attend the hearing; they can just submit a notarized statement.

The only evidence in the case was the statements of John Doe and Jane Roe that directly contradicted each other.

Despite the lack of evidence and Roe’s failure to even appear, the university found Doe “responsible” for sexually assaulting Roe “based upon her previous hearsay statements to investigators.” Doe was suspended for two years.

That suspension was enjoined by a federal district court judge, whose decision was affirmed by the Sixth Circuit. The two federal courts agreed with Doe that the “complete denial of his right to confront his accuser violated his due process right to a fair hearing.”

The Due Process Clause “guarantees fundamental fairness to state university students facing long-term exclusion from the educational process,” according to the Sixth Circuit. This was a classic “he said/she said” situation in which the credibility of each student was crucial to the case. The university’s “failure to provide any form of confrontation of the accuser made the proceeding against John Doe fundamentally unfair.”

The appellate court was also critical of the fact that it took the university four months to notify John Doe of the accusations made against him, and another four months to convene a hearing. The court found the behavior of the university “disturbing.”

The investigation of sexual assaults is a serious responsibility that must find the truth and prevent further harm to victims and those falsely accused. Neither of these universities has procedures in place to fairly and effectively handle these types of cases in a manner that protects the fundamental rights of students. I certainly wouldn’t allow any of my kids to attend these schools.