On Tuesday, the Foundation for Individual Rights in Education (FIRE) released a bombshell report showing that nearly 9 in 10 of America’s top 53 universities score a “D” or an “F” when it comes to protecting students’ due process rights. While the Trump Department of Education under Betsy DeVos has rescinded the 2011 “Dear Colleague” letter that led to the erosion of due process, it has not yet finalized Title IX regulations that would protect students on campus. FIRE supports the proposed rules.
“FIRE supports most of the proposed new rules that would affect disciplinary procedures for sexual misconduct cases,” Susan Kruth, FIRE’s senior project manager for legal and public advocacy, told PJ Media on Tuesday. While some provisions fall outside of FIRE’s scope and some others would require tweaking, “there are many changes in the proposed rules that would help ensure students are afforded fair hearings in campus sexual misconduct cases.”
The FIRE report shined a spotlight on due process violations across America’s universities, and noted that students tend to support the due process they are denied.
For instance, while 85 percent of students think their accused classmates should be presumed innocent until proven guilty, only 26 percent of America’s top universities grant that presumption of innocence. Although 75 percent of students support the accused’s right to cross-examine their accusers, only 1 in 10 universities guarantees this basic right. Eighty percent of students said a student accused of breaking the law should be allowed to have a lawyer present in judicial proceedings, but only one institution allows attorneys to participate without significant limitations.
FIRE analyzed each university’s judicial policies along ten criteria: a meaningful presumption of innocence, timely and adequate written notice of a violation, time to prepare with evidence before a trial, a requirement for impartial fact-finers, a meaningful hearing process, the right to present fact-finers, the right to meaningful cross-examination, the active participation of an advisor, a meaningful right to appeal, and a standard of clear and convincing evidence.
Each category was judged on a 20-point scale, with separate scores for the sexual misconduct policies and the non-sexual misconduct policies. Forty-seven of the 53 universities (89 percent) received a “D” (5-8) or “F” (0-4) grade for at least one of the ten categories.
Only four schools received a “B” for due process outside the realm of sexual misconduct, and each school received a “C” for its sexual misconduct policy. These included: the University of North Carolina, Chapel Hill (15 points and 11 points, respectively); Cornell University (14 points and 11 points); Georgia Institute of Technology (14 points and 11 points); and Stanford University (13 points and 10 points).
Four universities earned a “B” for non-sexual misconduct policies but a “D” for sexual misconduct policies: the University of California, San Diego (14 points and 6 points); the University of Virginia (13 points and 8 points); the University of California, Davis (13 points and 6 points); and the University of Pennsylvania (13 points and 5 points).
Six universities scored an “F” for both policies: the California Institute of Technology; Harvard University; the Massachusetts Institute of Technology; Pennsylvania State University; Rensselaer Polytechnic Institute; and Vanderbilt University. Neither Harvard nor MIT returned PJ Media’s requests for comment.
The Obama “Dear Colleague” letter from 2011 and a follow-up letter from 2014 are still wreaking havoc on college campuses, even though they have been rescinded.
“Many of the provisions that resulted in lower scores reflect instructions and recommendations from the executive branch in 2011 and 2014,” FIRE manager Susan Kruth told PJ Media. “For example, the Department of Education’s Office for Civil Rights told schools to use the low, ‘preponderance of the evidence’ standard in adjudicating sexual misconduct cases, and the White House Task Force to Protect Students from Sexual Assault encouraged schools to use a single-investigator model.”
“At many institutions, imprecise or vague language also contributed significantly to low scores,” Kruth noted. “Schools must be careful to explicitly and carefully guarantee procedural safeguards; otherwise, students may not actually be afforded those safeguards depending on who is implementing the school’s policies.”
PJ Media asked FIRE why colleges and universities continue to follow the mindset of the Obama administration in undermining due process, even though the “Dear Colleague” letter has been rescinded.
“I can’t speak for all school administrators, but right now they are under pressure from many different groups with different missions and recommendations,” Kruth explained. “Many administrators do understand the importance of due process but don’t have a complete understanding of what that should actually look like in practice.”
If administrators are confused, they should turn to FIRE’s resources to “understand what is needed to guarantee students fair hearings and why.”
Betsy DeVos’s proposed Title IX regulations are imperfect, but Kruth insisted that these regulations would raise these universities’ grades to a “C” or better.
Students should have due process rights to defend themselves from accusations, especially in the case of sexual assault when a false accusation will stain a student’s reputation for decades after the fact.
Follow the author of this article on Twitter at @Tyler2ONeil.
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