FIRE’s director of policy research, Samantha Harris, has authored an insightful new analysis of how courts have responded to the wave of due process and Title IX claims filed by college students accused of sexual misconduct.
The Heritage Foundation published Samantha’s legal memorandum, “Campus Judiciaries on Trial: An Update from the Courts,” last week. Heritage summarized Sam’s key points:
- The U.S. Department of Education’s Office for Civil Rights [OCR] has mandated that universities use a “preponderance of the evidence” standard when adjudicating claims of sexual harassment and sexual violence. This constitutes a remarkable erosion of the due process protections afforded students who are accused of serious misconduct.
- Under the increasingly popular “single investigator” model, one person essentially fulfills the roles of detective, prosecutor, judge, and jury.
- Students found “responsible” in campus proceedings are often expelled and face serious challenges when seeking to enroll at other schools.
- OCR’s unprecedented intrusion into university student conduct administration has taken the problem to a new level. Besieged college administrators find themselves struggling to comply with a breathtaking array of new regulations and requirements while under the federal microscope.
In addition to publishing Samantha’s article, Heritage also featured her on a panel last week for a discussion titled “Due Process Goes to School: How to Handle Campus Sexual Assault Cases.” In the discussion, Samantha details how campus proceedings became increasingly unfair after OCR’s 2011 “Dear Colleague” letter marked the beginning of the federal government’s “unprecedented intrusion” into campus sexual assault proceedings. As Sam told the audience, things have “gotten markedly worse”:
Specifically, students facing allegations of sexual misconduct are routinely found responsible and expelled without a hearing or an opportunity to meaningfully confront their accuser. Things have gotten so bad that since 2011 … more than 60 students have filed lawsuits alleging that they were denied fundamental fairness in campus sexual assault proceeding. And since I wrote that [statistic] there have been two or three more filed. … These things are coming into the courts on a weekly basis at this point.
You can watch Sam’s full remarks at The Heritage Foundation’s website.