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FIRE Briefs Congressional Staffers on Due Process

By October 20, 2015

Yesterday, my colleagues Samantha Harris, Joe Cohn, and I held a lunch briefing on campus sexual assault, Title IX, and due process for congressional and committee staff members on Capitol Hill. We were pleased to have a packed room and excited to see so many staff members from offices on both sides of the aisle interested in protecting the rights of all students on campus.

At the briefing, FIRE highlighted the failures of the current system, provided updates on recent court cases brought by accused students alleging due process violations, and gave an in-depth analysis of currently pending legislation, including the Campus Accountability and Safety Act (CASA), the Safe Campus Act, and the Fair Campus Act.

We also recommended that Congress consider the following additional reforms:

Right to Active Assistance of Counsel

If colleges and universities are going to adjudicate serious crimes like sexual assault, then students must have the right to the active assistance of counsel. Currently, although students are allowed to have counsel or an advisor of their choice present in a campus disciplinary proceeding, that person usually can’t actively participate. As Joe explained yesterday, “[i]t’s like having a surgeon in the room who can’t actually operate.” FIRE has helped pass bipartisan right to counsel legislation in North Dakota and North Carolina, and a similar bill is pending in Massachusetts. FIRE’s legislative team will continue to push for right to counsel legislation at the state and federal levels.

Right to Access the Evidence

FIRE believes that as they would be in the courts, persons accused of sexual misconduct in campus proceedings must be allowed to see the evidence against them, both inculpatory (tending to show guilt) and exculpatory (tending to show innocence). To bring legitimacy to the eventual result and protect students, all evidence must be made readily available to all parties of a case.

Eliminating Conflicts of Interest

FIRE also explained the dangerous, growing trend of universities implementing a single-investigator model for adjudicating sexual misconduct cases and how, in at least one case, a California court ruled the university acted improperly by using this flawed system. This model, praised by the White House Task Force to Protect Students From Sexual Assault, allows one person to act as investigator, judge, and jury in a campus sexual assault investigation. Eliminating the single-investigator model is essential to fundamental fairness.

Reconsider the Preponderance of Evidence Standard

The Department of Education’s Office for Civil Rights (OCR) mandates that to comply with Title IX, schools must use a “preponderance of the evidence” (more likely than not, or 50.01% certainty) standard to adjudicate claims of sexual misconduct. When coupled with other protections like active representation of counsel, ability to call witnesses and cross-examine them, and the right to cross-examine an accuser, the preponderance standard might not be as damaging. But these other protections do not typically exist in campus sexual assault proceedings, where use of the preponderance standard jeopardizes fundamental fairness.

FIRE will continue to engage members of Congress on these issues. We look forward to continued conversations with congressional staff, and are hopeful that any legislation Congress passes will include these four major reforms.