College students are fighting an uphill battle when defending themselves against accusations. Today, students accused of misconduct are subjected to long and invasive investigations without the right to legal representation, to question witnesses, or to be presumed innocent until proven guilty — all basic due process procedures to which every student should be entitled.
These abuses have been fostered by the Title IX adjudication policies from the Obama administration’s 2011 “Dear Colleague” letter. It provided rigid and authoritative “guidelines” requiring colleges to employ a “preponderance of the evidence” standard when judging cases of sexual misconduct.
That standard meant students could be penalized, suspended, or expelled if it “is more likely than not that sexual harassment or violence occurred”— a far cry from the “clear and convincing” or “beyond a reasonable doubt” standards employed in courts of law.
Fortunately, protecting due process may become easier since Betsy DeVos announced the Education Department will rescind the Dear Colleague letter. On Sept. 22, the Department of Education released interim guidance allowing colleges to use the “clear and convincing evidence” standard, which eliminates many of the perverse incentives to find accused students guilty.
Still, even with the Education Department ending the requirements, universities may keep their Obama-era policies.
To shed light on the lack of due process on college campuses, the Foundation for Individual Rights in Education released a report, “Spotlight on Due Process,“ analyzing disciplinary policies in the top 53 American universities. The results were dismal.
FIRE defined “10 fundamental elements of due process” and graded each university.
None of the adjudication policies got A grade, and FIRE reported just 42 percent of universities require that investigators or “fact-finders” be impartial. When investigating sexual misconduct cases, 79 percent of universities met few due process standards and received D or F grades.
Even in North Carolina, which has one of the strongest due process laws in the country, major universities fared poorly. The University of North Carolina at Chapel Hill received a D for its handling of sexual misconduct cases; Duke University got a C and Wake Forest University received an F.
North Carolina’s 2013 Students and Administration Equality Act protects public university students’ right to legal counsel and requires universities to report the number and type of investigations conducted. Yet Duke and Wake Forest, as private universities, aren’t subject to its protections. Even UNC-Chapel Hill is exempt in non-sexual misconduct cases because it uses student courts, the only exempt public institution. Consequently, students at Duke and Wake Forest — and, in some cases, at Chapel Hill — have no right to consult a lawyer in their defense.
According to a new provision in the Duke student conduct handbook, students who have already been exonerated of any wrongdoing can still be subjected to ongoing accusations and investigations. Many have argued this sort of policy subjects students to “double jeopardy,” the absence of which has been a cornerstone of our legal system.
Individual cases suggest that other North Carolina institutions not covered by FIRE’s report have similar procedures. In 2014, a student accused of sexual assault at Appalachian State University filed a lawsuit against the school and three of its administrators for denying him his due process rights.
Such incidents have become almost commonplace since the Dear Colleague letter was issued.
The president of Davidson College, Carol Quillen, openly rationalizes the abuse of due process. She suggested in the Charlotte Observer that:
“When a woman tells you she’s been assaulted, believe her. … Nothing about due process says to a rape survivor, ‘I believe you’ … How can we assure each survivor that we believe her while also insisting on an impartial investigative process?”
Quillen overlooks an important difference between showing compassion to an alleged victim and unconditionally accepting an accuser’s claims. And she is hardly alone in academia.
Despite the radical academic climate that rejects reasonable due process protections, steps can be taken to prevent future violations. Alumni, trustees, student groups, and legislators should pressure administrators to consult FIRE’s report to see where improvement is needed and make policy changes accordingly.
Second, students can help by participating in FIRE’s student network. Students will have the resources to educate themselves about current threats to their due process rights.
In North Carolina, it may be appropriate for the General Assembly to revisit House Bill 777. If passed, the bill would permit the cross-examination of witnesses and require a “clear and convincing” standard when determining whether a student is culpable of sexual assault.
A willingness to compromise the fundamental rights of students should not be condoned. State and university officials have the responsibility to rectify injurious policies and provide all students with “basic procedural protections.”
Shannon Watkins is a policy associate at the James G. Martin Center for Academic Renewal.