It’s due time for due process on campus

By July 2, 2018

On a chilly night in February, I sat in a windowless room discussing Vanderbilt University’s Title IX policies with a group of students. We represented 10 organizations from vastly different parts of campus; Greek Life, political organizations, first year council, and RAs were among the groups invited to share their ideas. We had been gathered as part of a “focus group” to provide feedback on Vanderbilt’s sexual assault misconduct policy, which has faced criticism on multiple fronts.

At Vanderbilt, both complainants and respondents have claimed that the university mishandled sexual misconduct allegations. In April 2018, student newspaper Vanderbilt Hustler published an article detailing the process that Rachel*, a victim of sexual assault, went through when filing a report with the university’s Title IX office. The article stated that the investigation took over 120 days, and that Rachel “felt as though she were in the dark on [the investigation’s] status” throughout the entire process. On the opposite side, Vanderbilt is currently being sued for $25 million by a student who was expelled in 2016 after being found responsible for committing sexual assault on campus — the student claims he was denied a meaningful standard of due process.

When the focus group discussion turned to Vanderbilt’s policies, most of the room drew a blank. The students around me had barely familiarized themselves with the school’s policies, and none knew that FIRE had given the policy a failing grade for its lack of due process protections.

FIRE’s 2017 Spotlight on Due Process report, which graded the due process protections at 53 top universities, highlights 10 essential safeguards for due process in misconduct proceedings: a presumption of innocence, adequate and timely notice, adequate time to prepare, no conflicts of interest, the right to challenge fact-finders for bias, access to and a right to present all evidence, the right to question the accuser and witnesses, active participation of counsel, a meaningful right to appeal, and a unanimity requirement for expulsion.

Vanderbilt offers only two of these safeguards in its policies — prohibition of conflicts of interest and a meaningful right to appeal — and specifically prohibits others, including participation of counsel. Vanderbilt’s policies mirror a larger trend on college campuses, spurred on by the Obama administration’s “Dear Colleague” letter, of implementing disciplinary policies that fail to guarantee a fair procedure for students.

Until I attended FIRE’s Student Defenders Conference last October, I had no idea that my school had minimal due process protections in student misconduct proceedings. Particularly problematic was not only the lack of due process protections in Vanderbilt’s sexual misconduct cases, but, as I learned later, the opinion of the focus group and many in the student body that these protections were unnecessary or that they only favor the accused.

However, these students’ opinions on procedural protections aren’t shared by most college students. According to FIRE’s 2018 “Proceeding Accordingly” survey on due process in higher education, college students are overwhelmingly in favor of strengthening due process protections in sexual assault proceedings: 74 percent of students surveyed were opposed to a single-investigator model in sexual assault proceedings, and over 60 percent of students believe that both parties should be able to look through and provide additional evidence throughout the hearing process. Both the survey and my own experience suggest that a lack of activism on campus surrounding due process protections is not a result of students opposing these protections, but rather not knowing that the system lacks these protections.

Due process protections in these proceedings do not only protect the rights of accused students, as my peers in the focus group feared; rather, they help to create a fairer and more transparent process for all students involved in sexual misconduct cases, and they ultimately help to cultivate trust in the sexual assault reporting system.

Similar to the due process protections that exist in criminal and civil proceedings, due process protections (or lack thereof)  in college administrative proceedings are often invisible unless you have been in direct contact with the misconduct hearing process. However, their impact cannot be overstated; without due process protections to create a fair, transparent hearing environment, student trust in the system of sexual assault misconduct proceedings will sink to even lower levels. Due process isn’t always visible or glamorous, but it is a fundamental underpinning of our democracy that should extend into campus cases where students’ educations and livelihoods are on the line.

Miranda Cross is a FIRE intern and a rising junior at Vanderbilt University