One of the first interviews I did for FIRE on the subject of campus due process was for a 2011 article in Philadelphia magazine titled “The New Rules of College Sex.” In that interview, I laid out FIRE’s concern that campus sexual misconduct adjudications often lack important procedural protections, the absence of which not only violates the rights of accused students, but also compromises the integrity of the process as a whole in a way that harms both victims and the accused.
At the time, Brett Sokolow — head of the National Center for Higher Education Risk Management (NCHERM) Group, a “law and consulting firm that offers systems-levels solutions for safer schools and campuses” — responded to my concerns by stating that “FIRE is sticking up for penises everywhere.”
In the intervening years, FIRE has continued to advocate for due process in campus disciplinary hearings, despite continued criticism from those who mistakenly equate support for fair procedure with a lack of concern for the victims of sexual assault and other serious misconduct. And we have continued to do so at no cost to the people we assist, who include not only students and faculty facing misconduct charges, but also the attorneys and advocates who represent them, as well as administrators who are interested in crafting procedures that are fair to everyone involved.
In a welcome development, in the six years since the “sticking up for penises” remark, NCHERM has slowly gained an appreciation for the importance of due process on campus as well — and recently, they have stepped up their efforts. Last month, the NCHERM Group released an astonishing whitepaper on due process in which it admonished many colleges and universities for becoming “sex police,” telling them to “get your thumb off the scale” and afford accused students a fundamentally fair adjudication process. And in a press release issued this week, the Association of Title IX Administrators (ATIXA, one of the groups under the NCHERM umbrella) announced a new “due process track” at its upcoming $1,499-a-pop Title IX training and certification course — taught by none other than Sokolow himself.
According to the press release:
Due process is under attack in the courts, federal agencies, and in the Congress. Higher education is facing a critical moment – If you’re interested in raising the bar on the procedural and substantive fairness of your sexual misconduct resolution proceedings (or all disciplinary proceedings), this track is for you.
I am very happy to see more people acknowledging the dangerous lack of due process that exists in campus sexual misconduct adjudications today, and seeking to improve the fairness of campus judicial proceedings. And maybe the course will be great — if anything, NCHERM and Sokolow have moved in FIRE’s direction since 2011. But the attacks that Sokolow and others have leveled against FIRE over the years, precisely because we advocate for reforms that would make the process fairer for everybody, have proven a serious distraction from the important work of protecting students’ rights. Every hour that I have to spend convincing a reporter, or a potential ally, that I do, in fact, think sexual assault is a serious crime that deserves serious punishment is an hour that I can’t spend doing the work I am here to do. So while I fully support Sokolow’s efforts if the end result will be greater due process protections on campus, you’ll forgive me if I’m a bit frustrated, as well.
And hey, if you want to learn more about campus due process and don’t have $1,499 to spend, FIRE has tons of great resources on the topic and is happy to speak with anyone who would like more information, at no cost.