As more students accused of sexual assault sue their universities, one thing is clear: College judicial bodies are poorly equipped to handle allegations of sexual assault. Unfortunately, the problems don’t stop once the university determines whether an accused student is responsible. The appeals process is flawed as well.
Much of the criticism leveled against campus sexual assault hearings has rightly focused on the due process concerns over the affirmative consent standard, the single investigator model, and the preponderance of the evidence standard. It is important to remember, however, that these standards and models are not the only ones that may affect the outcome of a case. Equally important are the appellate procedures whereby initial findings may be reviewed, modified, or reversed altogether. Because universities can make mistakes in adjudicating sexual assault on campus, a just appeals process offers students accused of serious crimes a chance to challenge erroneous rulings.
Under the Violence Against Women Reauthorization Act of 2013 (VAWA), universities must provide the same right to appeal to both complainants and respondents. As FIRE has previously noted, such a requirement potentially subjects accused students initially cleared of wrongdoing to a second hearing. This is analogous to what is known in the criminal justice system as “double jeopardy,” which is proscribed by the Fifth Amendment. Although the Fifth Amendment applies to criminal proceedings and not campus sexual assault hearings, as Wendy Kaminer put it, “you’d have to regard the protection against double jeopardy to be a mere constitutional technicality to believe that schools should dispense with it.” The serious consequences of being found responsible for committing sexual assault merit robust protection for accused students; Congress should amend the VAWA reauthorization and protect students against double jeopardy.
Many colleges also place unreasonable restrictions on the grounds for appeal. At institutions like Brandeis University, the University of Chicago, Brown University (where I am a student), and Harvard University, the permissible bases for appeal are limited to, for example, “substantial procedural error” or “new, material evidence not reasonably available at the time of the initial hearing.” Under these limited frameworks for appeals, a student found responsible for sexual misconduct cannot appeal on the grounds that the decision was not supported by the weight of the evidence, or that the decision was arbitrary and capricious. Given the low standard of evidence required for a finding of responsibility—the preponderance of the evidence standard, as opposed to the more demanding “clear and convincing” standard or the “beyond a reasonable doubt” standard employed in criminal court cases—granting students the right to challenge an adverse ruling is a vital due process protection.
To make matters worse, the window of time to file an appeal can be remarkably small. At Brown, students found responsible for sexual misconduct have just three business days after the conclusion of the initial hearing to file an appeal. If new, exculpatory evidence is uncovered more than three business days after the finding of responsibility—according to the letter of the policy—Brown is not obligated to consider an appeal presenting that evidence. That may render the possibility of appeal on this basis to be illusory. Although universities may use their discretion and grant an appeal anyway, history has demonstrated that relying on the good graces of college administrators to protect students’ rights too often sets those students up for disappointment. It is not hard to imagine a scenario in which a college, under pressure from the public or the federal government, refuses to hear new evidence because the time to file an appeal has elapsed. In fact, that is exactly what happened in the case of Caleb Warner.
Campus sexual assault proceedings are only as reliable as their component parts. Even if a university has an initial hearing process sensitive to both the needs of complainants and the due process rights of respondents, a flawed appeals procedure undermines the entire endeavor. For example, at the University of Pennsylvania, there are strict procedural rules governing the hearing panel; however, the decision of the hearing panel is appealable to a single faculty member. This individual performs a de novo review of all the facts and then determines whether to uphold the panel’s decision, without holding a second hearing. This potentially deprives accused students of the opportunity to communicate with a fact-finder empowered to make serious, life-altering decisions.
Ending campus sexual assault is an important cause, but it should not be done at the expense of due process and fundamental fairness. Reforming the appeals process would be an important step toward correcting the numerous problems inherent to campus sexual assault proceedings. The simplest and most effective reform would be to allow the criminal justice system to investigate and adjudicate accusations of sexual assault. This would grant accused students the rights of criminal defendants afforded to them by the Fifth and Sixth Amendments.
If universities nonetheless have to perform this function, they have to do it right.
Rohan Gulati is a FIRE summer intern.