Future ‘Spotlight on Due Process’ report could look very different if Title IX proposed regulations are enacted

By December 17, 2018

The Department of Education’s Office for Civil Rights published new proposed Title IX regulations in the Federal Register on Nov. 29, giving interested parties until Jan. 28 to comment on the proposals before they may be enacted. In FIRE’s Spotlight on Due Process 2018 report, we wrote that although most of the country’s top universities do not guarantee many essential procedural safeguards in their disciplinary procedures, a fairer status quo might be on the horizon — at least for sexual misconduct cases — if ED’s proposed rules are enacted.

Let’s imagine an institution complied with the proposed rules and incorporated the same procedural safeguards in its non-sexual misconduct procedures, too. Here’s how Hypothetically Compliant State University would stack up according to the criteria we applied in writing our Spotlight on Due Process 2018 report:

Safeguard #1: A clearly stated presumption of innocence, including a statement that a person’s silence shall not be held against them.

Proposed rule text: “Grievance procedures must … [i]nclude a presumption that the respondent is not responsible for the alleged conduct until a determination regarding responsibility is made at the conclusion of the grievance process[.]”

Discussion: FIRE would like to see this statement accompanied by a guarantee that no negative inferences will be drawn from an accused student’s decision not to answer questions. But Compliant State would already be ahead of the 73.6 percent of top universities we surveyed that don’t explicitly guarantee a presumption of innocence.

Safeguard #2: Timely and adequate written notice of the allegations before any meeting with an investigator or administrator at which the student is expected to answer questions.

Proposed rule text: “Upon receipt of a formal complaint, a recipient must provide the following written notice to the parties who are known: … Notice of the allegations constituting a potential violation of the recipient’s code of conduct, including sufficient details known at the time and with sufficient time to prepare a response before any initial interview. Sufficient details include the identities of the parties involved in the incident, if known, the specific section of the recipient’s code of conduct allegedly violated, the conduct allegedly constituting sexual harassment under this part and under the recipient’s code of conduct, and the date and location of the alleged incident, if known.”

Discussion: Again, Compliant State would be a leader compared to other institutions, since 90.6 percent of universities we surveyed do not guarantee that accused students receive this information in writing before interviews. Ideally, institutions would explicitly guarantee a minimum of three days after an accused student is given notice of charges to prepare for any interview.

Safeguard #3: Adequate time to prepare for a reasonably prompt disciplinary hearing. Preparation shall include access to all evidence to be used at hearing.

Proposed rule text: “The written notice must also inform the parties that they may request to inspect and review evidence … .” “When investigating a formal complaint, a recipient must … [p]rovide to the party whose participation is invited or expected written notice of the date, time, location, participants, and purpose of all hearings, investigative interviews, or other meetings with a party, with sufficient time for the party to prepare to participate[.]”

It must “[p]rovide both parties an equal opportunity to inspect and review any evidence obtained as part of the investigation that is directly related to the allegations raised in a formal complaint, including the evidence upon which the recipient does not intend to rely in reaching a determination regarding responsibility, so that each party can meaningfully respond to the evidence prior to conclusion of the investigation. Prior to completion of the investigative report, the recipient must send to each party and the party’s advisor, if any, the evidence subject to inspection and review in an electronic format, such as a file sharing platform, that restricts the parties and advisors from downloading or copying the evidence, and the parties shall have at least ten days to submit a written response, which the investigator will consider prior to completion of the investigative report. The recipient must make all such evidence subject herein to the parties’ inspection and review available at any hearing to give each party equal opportunity to refer to such evidence during the hearing, including for purposes of cross-examination[.]”

Institutions must also “[c]reate an investigative report that fairly summarizes relevant evidence and, at least ten days prior to a hearing (if a hearing is required under this section) or other time of determination regarding responsibility, provide a copy of the report to the parties for their review and written response.”

Discussion: Students at Compliant State would be much better able to prepare their cases than students at most of the universities we rated; over three quarters of them didn’t guarantee advance access to all relevant evidence before a hearing. The proposed rules make clear that students and their advisors will have access to all evidence — including evidence that the institution may not use during the hearing — at least 10 days even before an investigative report is completed. Compliant State would receive full points from FIRE for this safeguard.

Safeguard #4: The right to impartial fact-finders, including the right to challenge fact-finders for conflicts of interest.

Proposed rule text: “Grievance procedures must … [r]equire that any individual designated by a recipient as a coordinator, investigator, or decision-maker not have a conflict of interest or bias for or against complainants or respondents generally or an individual complainant or respondent.”

Discussion: FIRE would like to see disciplinary policies explicitly lay out a mechanism for challenging decision-makers for bias, as 37.7 percent of surveyed institutions did. But Compliant State would still be ahead of the 47.2 percent of surveyed universities that didn’t even explicitly require fact-finders to be free from bias or conflict of interest.

Safeguard #5: The right to a meaningful hearing process; the institution must not employ a “single-investigator” model.

Proposed rule text: “For institutions of higher education, the recipient’s grievance procedure must provide for a live hearing.”

Discussion: Later provisions guaranteeing the ability of “the decision-maker and parties to simultaneously see and hear the party answering questions” make clear that ED’s idea of a live hearing is the same as FIRE’s. This real-time observation is vital so that parties know exactly what evidence the fact-finders are receiving and how best to rebut it. Compliant State would receive full points for this safeguard.

Safeguard #6: The right to present all evidence directly to the fact-finder.

Proposed rule text: “Grievance procedures must … [r]equire an objective evaluation of all relevant evidence—including both inculpatory and exculpatory evidence … .” “When investigating a formal complaint, a recipient must … [p]rovide equal opportunity for the parties to present witnesses and other inculpatory and exculpatory evidence” and “[n]ot restrict the ability of either party to discuss the allegations under investigation or to gather and present relevant evidence[.]”

Discussion: The proposed regulations do not explicitly state that decision-makers must see and hear all evidence directly. However, the rules’ emphasis on decision-makers seeing and hearing testimony, the mandatory live hearing, and the guarantee that parties are not restricted in their abilities to present relevant evidence, taken together, suggest that Compliant State would earn full points for this safeguard.

Safeguard #7: The ability to question witnesses, including the complainant, in real time, and respond to another party’s version of events.

Proposed rule text: “At the hearing, the decision-maker must permit each party to ask the other party and any witnesses all relevant questions and follow-up questions, including those challenging credibility. Such cross-examination at a hearing must be conducted by the party’s advisor of choice, notwithstanding the discretion of the recipient … to otherwise restrict the extent to which advisors may participate in the proceedings. If a party does not have an advisor present at the hearing, the recipient must provide that party an advisor aligned with that party to conduct cross-examination. All cross-examination must exclude evidence of the complainant’s sexual behavior or predisposition, unless such evidence about the complainant’s sexual behavior is offered to prove that someone other than the respondent committed the conduct alleged by the complainant, or if the evidence concerns specific incidents of the complainant’s sexual behavior with respect to the respondent and is offered to prove consent. At the request of either party, the recipient must provide for cross-examination to occur with the parties located in separate rooms with technology enabling the decision-maker and parties to simultaneously see and hear the party answering questions. The decision-maker must explain to the party’s advisor asking cross-examination questions any decision to exclude questions as not relevant. If a party or witness does not submit to cross-examination at the hearing, the decision-maker must not rely on any statement of that party or witness in reaching a determination regarding responsibility[.]”

Discussion: This provision would help to ensure a victim will not be questioned directly by his or her attacker, but it also clarifies that this goal may not impede an accused student’s ability to cross-examine his or her accuser. As in FIRE’s ratings, it is critical that all involved individuals be able to see and hear each other, and that all relevant questions be asked. Compliant State would receive full points for this safeguard.

Safeguard #8: The active participation of an advisor of choice, including an attorney (at the student’s sole discretion), during the investigation and at all proceedings, formal or informal.

Proposed rule text: “When investigating a formal complaint, a recipient must … [p]rovide the parties with the same opportunities to have others present during any grievance proceeding, including the opportunity to be accompanied to any related meeting or proceeding by the advisor of their choice, and not limit the choice of advisor or presence for either the complainant or respondent in any meeting or grievance proceeding; however, the recipient may establish restrictions regarding the extent to which the advisor may participate in the proceedings, as long as the restrictions apply equally to both parties[.]”

Discussion: FIRE believes students should have the right to be actively assisted by an attorney or other advisor of their choosing. Importantly, the proposed rules do allow for active participation during cross-examination — a significant step up from the status quo on most campuses, where advisors cannot participate in hearings at all. However, the proposed rules do not guarantee a student’s right to have an advisor participate in other parts of the hearing.

Safeguard #9: The meaningful right of the accused to appeal a finding or sanction.

Proposed rule text: “Grievance procedures must … [i]nclude the procedures and permissible bases for the complainant and respondent to appeal if the recipient offers an appeal[.]” “As to all appeals, the recipient must … [e]nsure that the appeal decision-maker is not the same person as any investigator(s) or decision-maker(s) that reached the determination of responsibility[.]”

Discussion: It is critically important that students receive information about their appeal rights, just as they should have access to all information about disciplinary procedures generally. However, Compliant State should go further than what the proposed rules require here. FIRE believes grounds for appeal should include (1) new information or evidence that was previously unavailable, (2) procedural error, and (3) findings that are clearly not supported by the evidence. Of the institutions we surveyed, 96.2 percent provided at least two of these grounds for appeal.

Safeguard #10: A requirement that factual findings leading to expulsion be agreed upon by a unanimous panel or be supported by clear and convincing evidence.

Proposed rule text: “To reach this determination, the recipient must apply either the preponderance of the evidence standard or the clear and convincing evidence standard, although the recipient may employ the preponderance of the evidence standard only if the recipient uses that standard for conduct code violations that do not involve sexual harassment but carry the same maximum disciplinary sanction.”

Discussion: While the proposed rules do not require a heightened standard of proof, it is significant that they allow one. From April 4, 2011 to Sept. 22, 2017, schools were forced to use the “preponderance of the evidence” standard to adjudicate sexual misconduct cases in order to comply with an unlawful mandate from ED.

Conclusion

If Compliant State did nothing beyond comply with the proposed rules, and FIRE included it in our Spotlight 2018 report, it would earn 11 points (a C grade) for its sexual misconduct procedures: more points than all but four universities’ sexual misconduct procedures. If it had at least two of the grounds for appeal that we looked for, as the vast majority of surveyed institutions did, and opted to use the “clear and convincing” standard, then Compliant State would be tied with Georgia Institute of Technology for having the highest-rated sexual misconduct procedures. If Compliant State also used the same procedures for its non-sexual misconduct cases, it would be the highest-rated institution in the report.

This isn’t to say that universities couldn’t come up with new and creative ways to impede due process. But the bottom line is that ED’s proposed rules would go a long way toward ensuring fundamental fairness in campus disciplinary proceedings.