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Ahead of DeVos Hearing, Two FIRE Editorials on Justice and Due Process

By January 17, 2017

Two FIRE op-eds out today reiterate the importance of due process on campus—for both accusers and accused—ahead of the confirmation hearings of Secretary of Education nominee Betsy DeVos, whose past donations to FIRE have been cited critically by some opponents of her confirmation.

Writing for The Wall Street Journal, FIRE co-founder and board member Harvey Silverglate explains how the outgoing administration has interpreted Title IX, the federal law prohibiting sex discrimination in higher education, “as a mandate to punish students and faculty accused of sexual misconduct using procedures that make it extraordinarily difficult for even an innocent person to defend himself.”

Harvey explains that higher education is currently locked in a “contentious battle over campus sexual assault”—one that the new administration will doubtless be asked to address in one way or another:

The Obama administration and certain nonprofits, including the AAUW [American Association of University Women], want to make it easier for campus disciplinary tribunals to credit the complaints of alleged victims and to punish the accused, frequently by expulsion.

The Education Department has instructed universities to adjudicate claims of sexual misconduct using the low “preponderance of the evidence” standard, in which the mere 50.1% likelihood of guilt is sufficient. FIRE argues that a higher standard may be necessary—particularly given that campus judicial systems typically lack many if not most of the procedural protections available to defendants facing criminal charges, or even civil liability, in a court of law.

Harvey also discusses the types of criticisms that civil liberties groups invariably receive for their defense of the rights of people accused of serious wrongdoing. When one works for (or even supports, as DeVos has) such groups, “one is saddled with the actions of the accused rather than credited with advocating for fair procedures.” Harvey adds that “[a]s a criminal-defense and civil-liberties trial lawyer who has represented defendants ranging from student radicals to alleged child molesters, I can vouch for the virulence of guilt-by-association.”

Meanwhile, in an editorial for the Washington Examiner, FIRE Vice President of Policy Research Samantha Harris details just how critical due process protections are not only for the accused, but for accusers as well.

“People accused of serious wrongdoing of any kind, people whose futures are rightly at stake given the severity of the accusations against them, deserve a fair process that affords them a meaningful opportunity to defend themselves,” Sam writes. But due process also safeguards “the integrity and reliability of the judicial process as a whole,” which “is critical for both accusers and accused alike.”

Sam cites as evidence an alarming case out of the University of Kentucky in which a woman who accused a fellow student of rape was forced—because of the university’s repeated procedural errors—to endure multiple re-hearings on the same case over the course of two years, allegedly causing her “mental health to deteriorate.” She is now suing the university. And the court hearing her case found that “the University bungled the disciplinary hearings so badly, so inexcusably … [it] profoundly affected Plaintiff’s ability to obtain an education at the University of Kentucky” and may even have evidenced “deliberate indifference” towards her.

As both Sam and Harvey explain in their respective op-eds, we at FIRE advocate for the rights of students encountering these unfair procedures on a daily basis. While we believe that the police—not campus tribunals—are best suited to adjudicate sex crimes, colleges and universities that choose to do so under the federal government’s current interpretation of Title IX should provide basic safeguards to protect the rights of all students.

In light of DeVos’ Senate hearings today—exploring her qualifications to lead both the Department of Education and, potentially, the charge toward fairer campus hearings—Sam’s and Harvey’s editorials are worth full and thoughtful reads.