Dept. of Education Will Finally Confront Campus 'Due Process' Crisis

by Daniel Burnett: a speech today at George Mason University, Secretary of Education Betsy DeVos acknowledged that the department’s approach to enforcing Title IX, the law against sex discrimination in federally funded education programs, is fundamentally broken. Secretary DeVos announced the department will launch a public “notice-and-comment” process to “replace the current approach with a workable, effective, and fair system.”

Addressing widespread concerns about the fairness of current college sexual misconduct codes, the secretary noted that respect for due process is “the foundation of any system of justice that seeks a fair outcome,” and that codes must ensure “fair procedures that inspire trust and confidence.” With regard to the unilateral and opaque way that current federal mandates in this area were imposed, she further assured listeners that “the era of ‘rule by letter’ is over.”

The announcement is both timely and vitally important. A study released Tuesday by the Foundation for Individual Rights in Education found that college students are routinely denied even the most basic elements of a fair hearing.

Eighty-five percent of America’s top universities receive a D or F grade for not consistently ensuring basic due process rights. For example, a shocking 74 percent of America’s top universities do not even explicitly guarantee accused students the right to be presumed innocent until proven guilty. Fewer than half always require that fact-finders (the equivalent of the judge or jury) in campus hearings be impartial. And at more than half of top universities, students have even fewer due process protections in cases involving sexual misconduct than in cases that don’t.

“Colleges did not simply ‘forget’ obvious principles of fairness like impartiality, the presumption of innocence, and the right to confront one’s accuser: They were reacting to government policy that made it clear that sticking to these principles was a ticket to interminable and intrusive federal investigations,” said FIRE Executive Director Robert Shibley.

On April 4, 2011, the Department of Education’s Office for Civil Rights kicked off an effort to fundamentally change Title IX enforcement by surprising colleges with a “Dear Colleague” letter curtailing due process in college sexual misconduct hearings. Among other things, that letter mandated that schools use the low “preponderance of the evidence” (50.01 percent certainty) standard when determining whether students had committed sexual harassment or assault.

“Six and a half years of this failed policy have left us with a system that victims still don’t trust and that the accused have every reason to believe is stacked against them,” said Shibley. “It’s time to rescind the ‘Dear Colleague’ letter and replace it through the lawful regulatory process so that everyone can have a say."

The government’s follow-up efforts only compounded the problem, including repeated attempts to mandate unconstitutional campus speech codes beginning with a settlement with the University of Montana that the office referred to as a “blueprint for colleges and universities throughout the country.” Secretary DeVos signaled that this would likely change, remarking that “harassment codes which trample speech rights derail the primary mission of a school to pursue truth.”

Campuses responded to the years of federal pressure by creating unjust systems that, predictably, produced unjust results for students:

• A Stanford University student was suspended for two years for intoxicated (not incapacitated) sex when the university changed the standard of evidence in the middle of his case.
• A federal judge rebuked Brandeis University for holding “what was essentially an inquisitorial proceeding” when it found a student guilty of sexual assault for “offenses” including waking up his then-boyfriend by kissing him and staring at his body in the communal bathroom.
• A female student at the University of Oregon was hit with five conduct charges for a four-word joke.
• A University of Tulsa student was found guilty of harassment for Facebook posts written by his husband. 

Faculty were not spared, either:

• Northwestern University Professor Laura Kipnis was subjected to a Title IX investigationfor questioning “sexual paranoia” in a newspaper article.
• Howard University School of Law Professor Reginald Robinson was found guilty of harassment for a law school test question about a Brazilian wax.

Indeed, since April 4, 2011, students have filed more than 180 lawsuits against colleges for allegedly conducting unfair disciplinary procedures. FIRE is also sponsoring an ongoing court challenge to the Dear Colleague letter’s mandate.

“The last six and a half years represent an enormous missed opportunity to help colleges and universities address campus sexual misconduct in a way that would serve the needs of victims while respecting everyone’s fundamental rights,” said Shibley. “Instead, the Office for Civil Rights sent the message that due process is an impediment to justice, ignoring repeated and painful historical lessons to the contrary. Today’s speech is reason for great optimism that the important issue of campus sexual assault will finally get the fair and open consideration it deserves.”
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Daniel Burnett is the Communications Manager for The Foundation for Individual Rights in Education (FIRE) a nonpartisan, nonprofit organization dedicated to defending liberty, freedom of speech, due process, academic freedom, legal equality, and freedom of conscience on America’s college campuses.

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