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FIRE Responds to Know Your IX’s Letter to College Presidents Regarding Fair Procedures

By April 16, 2015

Yesterday, victims’ rights advocacy group Know Your IX issued an open letter to college and university presidents, calling on institutions “to ensure procedural rights for both parties, the accused and the accusing student.” Cosigned by similarly focused campus organizations like No Red Tape and Carry That Weight, Know Your IX’s letter explicitly recognizes that “schools must provide procedural protections for all students” and thus signifies an important turning point in the national conversation about how best to respond to campus sexual assault.

Areas of Agreement

FIRE welcomes Know Your IX’s attention to the importance of meaningful due process protections for all parties.

FIRE has consistently emphasized that “[d]ue process is more than a system for protecting the rights of the accused; it’s a set of procedures intended to ensure that findings of guilt or innocence are accurate, fair, and reliable.” Accordingly, we strongly agree with Know Your IX’s acknowledgment that “[f]or the integrity and well-being of our communities, including those harmed, our systems of investigation, deliberation, and sanctioning must proceed with meaningful protections for all involved.”

In perceiving that “many of the same procedures criticized by accused students hurt victims as well,” Know Your IX identifies the unfortunate common ground shared by all students, including both accuser and accused, who suffer from the increasingly well-documented failures of our campuses’ current approach to sexual misconduct. As FIRE has noted, when due process protections are eroded or eliminated, “campus proceedings will arrive at arbitrary, unsupportable conclusions that lack the integrity all parties deserve.” We appreciate Know Your IX’s considered agreement.

Similarly, FIRE is grateful for Know Your IX’s important recognition that meaningful due process protections are necessary to ensure that judicial outcomes are not tainted by bias or discrimination. As commentators like Harvard Law School Professor Janet Halley and Fredrik deBoer have noted, the injustice caused by weakening or removing due process protections may disproportionately affect the disadvantaged. Likewise, FIRE has noted that “when so many cases rest on fact-finders simply deciding which party they find more trustworthy, an investigator’s or a panel’s biases (even if unconscious) can determine the outcome of a case.” Know Your IX has arrived at this same conclusion, observing that “barebones procedural protections leave room for discrimination, including on the basis of race and class, in investigation and sanctioning.”

Finally, FIRE echoes Know Your IX’s call for the provision of specific procedural safeguards in campus judicial procedures. Like Know Your IX, FIRE strongly supports:

  • The right to timely and clear notice of the allegations, parties’ rights and responsibilities (under both school policy and law), procedural updates, and the final determination
  • The right to review all materials used in the investigation and hearing with adequate time to consider and respond
  • The right to guidance from a trained advocate
  • The right to submit evidence and recommend witnesses and questions for the other party to decision-makers
  • The right to be heard by neutral decision-makers with professional expertise
  • The right to a safe and sensitive investigation and hearing
  • The right not to self-incriminate if criminal charges are possible or pending
  • The right to an explanation for the final decision
  • The right to fair and proportionate sanctions

With certain necessary specifications, discussed below, these protections should be provided in all campus judicial sexual assault adjudications.

Areas of Disagreement

However, FIRE disagrees with Know Your IX in several substantial respects.

Most fundamentally, FIRE does not share Know Your IX’s underlying faith in college and university administrators’ ability to fairly adjudicate allegations of sexual assault. FIRE believes that continuing to entrust campus judiciaries with the responsibility to determine the guilt or innocence of students accused of one of society’s most heinous crimes ensures continued failure. The current system is broken. Greater procedural protections would certainly be an improvement, but they will not solve the problem.

We note that Know Your IX’s open letter does not specify any role for law enforcement in responding to campus sexual assault, instead only mentioning the criminal justice system in the context of “affirmatively rejecting” advocates who “confus[e] student discipline for criminal law.” FIRE believes that to best serve both efficacy and fairness, law enforcement and the criminal justice system must investigate and adjudicate allegations of criminal misconduct. We maintain that the “safety of our nation’s college students demands the focused attention of well-trained law enforcement professionals, not campus administrators following risk management practices.”

If law enforcement pays insufficient attention to campus sexual misconduct or treats allegations with insufficient care, the answer is to reform, recalibrate, and improve law enforcement’s understanding of and response to campus sexual assault. Self-interested campus administrators are no substitute, and creating a parallel justice system is no solution.

FIRE appreciates Know Your IX’s acknowledgment of “the particular challenges and opportunities of the campus context,” and we have argued that colleges are well-suited to “conducting preventive education, securing counseling for alleged victims and providing academic and housing accommodations to keep students safe while the wheels of justice turn,” as well as “quickly connect[ing] student complainants to medical resources and law enforcement” and “provid[ing] them with the resources they need to navigate the criminal justice system.”

But to be clear: Campus judicial systems lack the expertise and authority to investigate allegations, prosecute cases, and properly punish those found guilty of sexual misconduct. Rapists deserve not just expulsion, but imprisonment. This is particularly true if one accepts the studies suggesting that campus rapes are often perpetrated by repeat offenders and that more women face assault off campus than on campus. Because sexual assault is a crime that afflicts our society beyond the campus gates, a policy response focused solely on campus and empowered only to expel rapists from college is insufficient, particularly if we care about the safety of those who lack the opportunity to attend our nation’s colleges or universities.

With regard to Know Your IX’s call for certain procedural safeguards, three important specifications must be made.

First, Know Your IX calls for the “right to guidance from a trained advocate.” FIRE appreciates and agrees with this request. (Indeed, we believe students require more than guidance; given the high stakes for all involved, they need active representation and full participation from their advisor.) We note, however, that under both federal law and Department of Education regulations, this “trained advocate” may be an attorney. In amending the Clery Act, the Violence Against Women Reauthorization Act of 2013 (VAWA) states that both the accuser and the accused student possess “the opportunity to be accompanied to any related meeting or proceeding by an advisor of their choice”—including an attorney. The Department of Education’s regulations implementing the changes to the Clery Act contained in VAWA make this right explicit, stating that the statute “clearly and unambiguously supports the right of the accused and the accuser to be accompanied to any meeting or proceeding by ‘an advisor of their choice,’ which includes an attorney.”

(The Department of Education’s commentary also makes clear that, contrary to suggestions from some victims’ rights advocates, state right-to-counsel laws granting student attorneys the right to fully participate in disciplinary proceedings do not conflict with VAWA. The Department notes that the “regulations do not require an institution to impose restrictions on the advisor’s participation, they merely permit the institution to do so. Where State law prohibits such a restriction, State law would trump any institutional policy intended to restrict the advisor’s participation that would otherwise be permissible under these regulations.”)

Second, Know Your IX calls for the “right to a safe and sensitive investigation and hearing.” FIRE supports this request, but strongly cautions that institutional considerations of “safety” and “sensitivity” cannot justify otherwise flawed or improper investigations of alleged misconduct. For example, an investigation or hearing that, in the service of being “sensitive” to the accuser, does not consider exculpatory evidence is impermissible. Similarly, a public college’s investigation into allegedly harassing speech must cease as soon as the speech is determined to be protected by the First Amendment.

Finally, FIRE strongly disagrees with Know Your IX’s call for the right to internal administrative appeals for accusers following a decision, just as we disagreed with the Office for Civil Rights’ mandate of such a right in the agency’s 2011 “Dear Colleague” letter and with VAWA’s subsequent codification of that right. Forcing students who have been exonerated to defend themselves again violates our society’s normative notions of basic procedural fairness. Just as the criminal justice system does not allow someone accused of a crime to be tried again for the same offense following a proper acquittal or conviction, neither should campus tribunals be allowed another attempt at securing a guilty finding. Allowing accused students to be retried is particularly troubling given the numerous other procedural failures inherent in campus judicial proceedings, including the use of the low “preponderance of the evidence” standard and the denial of the right to question one’s accuser.

FIRE appreciates Know Your IX’s call for procedural fairness on campus and we are pleased to see that we share significant common ground. While we disagree in some important respects with regard to what fair process requires and what role colleges and universities should play in responding to sexual misconduct allegations, we respect Know Your IX’s thoughtful recognition of the need for meaningful due process protections for all involved in campus hearings.

Cases: National: White House Task Force on Campus Sexual Assault Jeopardizes Student Due Process National: Violence Against Women Act Reauthorization U.S. Department of Education’s Office for Civil Rights April 4, 2011, Guidance Letter Reduces Due Process Protections