Most top U.S. universities earn D or F grades for policies that fail to provide fair procedures to students accused of sexual misconduct, states the Foundation for Individual Rights in Education (FIRE).
FIRE examined policies at 53 top national universities for 10 fundamental procedural safeguards for students accused of sexual misconduct, and separate policies for other misconduct unrelated to academics. The checklist of due process rights FIRE used to rank institutions’ policies included presumption of innocence, the right to impartial fact-finders, and the ability to question witnesses.
None of the institutions’ policies received an A grade—meaning none of the surveyed institutions guarantee all basic due process protections. More than four-fifths of the schools received a grade of D or F on protecting the due process rights of students, including 22 institutions that received an F. The University of North Carolina-Chapel Hill’s disciplinary policies received the best grades, earning a B for its procedures for non-sexual misconduct cases and a C for its procedures for sexual misconduct cases.
The top schools were taken from U.S. News & World Report’s National University Rankings for 2017. Specific policies at 104 universities were examined in the FIRE report, Spotlight on Due Process 2019-2020, which was released on December 11.
University sexual misconduct proceedings arise from Title IX of the Higher Education Act, which governs sex discrimination at institutions receiving federal aid. Title IX requires universities to adopt disciplinary processes to handle claims of sexual discrimination, harassment, and violence.
‘Holding Kangaroo Court’
Many universities have adopted specific procedures to handle sexual misconduct charges in the past decade under pressure from the federal government, says Harry Painter, an independent education analyst and contributor to School Reform News.
“The Obama administration in 2011 sent a ‘Dear Colleague’ letter threatening colleges with punitive action unless they took ‘prompt and effective steps’ to respond to campus sexual violence,” Painter said. “This letter specified that colleges were to investigate cases even if they were already being investigated as a crime by law enforcement.”
To comply with this guidance, which came from the U.S. Department of Education’s (DOE) Office of Civil Rights (OCR), universities began to develop student disciplinary proceedings that lacked basic safeguards for those accused of misconduct, Painter says.
“One result of this was that some colleges started holding kangaroo court hearings that required a bare-minimum ‘preponderance of evidence’ standard for ruling against an accused student,” Painter said.
More than 500 lawsuits have been filed since 2011 against universities by accused students complaining they were denied due process or other constitutional rights are being tracked in FIRE’s database of Title IX cases.
The lack of protections for students accused of misconduct creates significant burdens for the accused, Painter says.
“Under the status quo at many universities, accused students can have their lives ruined thanks to a biased ruling with no presumption of innocence,” Painter said.
Accusers in sexual misconduct cases are also affected by their decision to report incidents to the university and be subject to the university misconduct procedures, rather than filing charges with law enforcement, Painter says.
“The accuser is also at a disadvantage, because there are no criminal penalties for the rapist or sexual assaulter,” Painter said. “A violent criminal could potentially roam free because his accuser chose to take her criminal complaint to a Title IX officer instead of a police officer.”
Sexual misconduct rules have also led to the creation of campus bureaucracies, including full-time Title IX coordinators, to comply with myriad guidelines from the OCR.
Let Police Handle
Universities have become local governments, says Jane Stroup, chair of the James G. Martin Center for Academic Renewal.
“The problem of due process illustrates how colleges and universities have grown into small municipalities, with problems arising from sexual conflicts, housing disputes, drinking, assault, and so forth—far beyond the narrow realm of academic issues,” Stroup said.
“Schools don’t seem to recognize that they need to handle these problems with the consistency and justice provided by the rule of law,” Stroup said. “One approach would be to let more of those conflicts be handled by police and judicial authorities outside the university.”
Making It Worse?
DOE proposed new Title IX regulations in 2018, but had not issued the final rule at press time. The revision will require many colleges to change their policies. The key provisions require basic due process, a presumption of innocence, and a definition of sexual harassment consistent with U.S. Supreme Court rulings on Title IX cases.
Universities’ current policies would not meet requirements under DOE’s proposed Title IX regulations, but the new rules would raise the grades of schools that received a D or an F for their sexual misconduct policies to a C or better, the FIRE report states.
The new rules would improve procedural protections, but that requires universities to establish even more extensive judicial processes, Painter says. Instead, universities should remove themselves from the adjudication business altogether.
“The best thing for schools to do to ensure due process would be to refer criminal cases to law enforcement, where they belong,” Painter said. “The proposed regulations worsen the existing problem of encouraging colleges to investigate criminal cases instead of leaving that job to the professionals.”
Kelsey Hackem (firstname.lastname@example.org) writes from Columbus, Ohio.
Spotlight on Due Process 2019-2020, Foundation for Individual Rights in Education, December 11, 2019: https://www.thefire.org/resources/spotlight/due-process-reports/due-process-report-2019-2020/
Ashley Bateman, “Organization Tracks Lawsuits Challenging Colleges’ Sexual Misconduct Policies,” Budget & Tax News, January 7, 2020: