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Know Your IX finds common ground with FIRE despite differences

By July 7, 2017

Earlier this week, Know Your IX, a “survivor- and youth-led organization that aims to empower students to end sexual and dating violence in their schools,” released a “State Policy Playbook” detailing the organization’s recommendations for how states and schools can work to reduce and respond to sexual harassment and misconduct. While Know Your IX and FIRE disagree on several major points, the Playbook demonstrates an understanding that the status quo is unfair for both accused students and complainants. It also recommends schools guarantee a number of rights for students that would leave them better protected against inaccurate findings of responsibility than they currently are at many institutions.

Know Your IX aptly observes that “many schools … publiciz[e] unclear policies or fail[] to apply their own policies consistently.” (Just yesterday, FIRE reported on yet another incredibly overbroad application of a sexual harassment policy.) The Playbook urges: “Each institution should post its Policy on its website in a manner easily accessible to the public, and should take reasonable steps to ensure the Policy is widely distributed to and understood by students.”

FIRE could not agree more—and the problem of unclear policies and procedures goes way beyond the scope of the Playbook. We have seen information about campus disciplinary procedures spread out over multiple pages and multiple policies, with seemingly contradictory provisions governing the same cases. And when it comes to free speech on private campuses, clarity and consistency in policies is the name of the game.

The Playbook goes on to recommend best practices to ensure fair disciplinary procedures, explicitly stating that “schools should be required to provide, at a minimum, the [listed] rights to both the complaining and responding party.” FIRE disagrees with some of the recommendations (and is still unconvinced that the investigations and adjudications of these cases should be handled by campus administrators at all), but many of these proposed rights would be significant steps towards ensuring accused students receive fair hearings.

For example, “The school shall … provide the respondent timely and clear notice of the date, time, location, and factual allegation(s) concerning the violation.” Both parties should have written notice of meetings and hearings, “in advance with sufficient time to prepare.” To the same end, both parties should be able to “review available evidence in the case file, with adequate time to consider and respond and in the presence of an advisor of their choice.” They should be able “to submit evidence, recommend witnesses, provide testimony at a hearing, and recommend questions for the other party to investigators.” FIRE would go further in guaranteeing that parties may ask each other all relevant questions, even if relayed through a third party. Still, too many colleges and universities guarantee none of these essential opportunities during campus disciplinary proceedings.

According to the Playbook, students should have “access to counsel, who may assist and advise any party throughout the disciplinary process, including all meetings and hearings related to such process, in compliance with applicable federal and state laws.” It is unclear whether “assist” includes what FIRE refers to as active assistance — that is, direct participation in disciplinary hearings, such as making objections and asking questions. We are nevertheless pleased that Know Your IX agrees that legal counsel for both parties helps rather than hinders the adjudication process.

The Playbook also recommends that sexual misconduct cases be decided by a “panel of three to five (3-5) impartial and regularly and thoroughly trained decision makers.” It further would guarantee the right to appeal to another such panel “where previously unavailable evidence or procedural error could significantly impact a case’s outcome … .”

This would be a significant step up from the single-investigator model being adopted at many institutions, which gives a single individual complete control over a case and therefore maximizes the chance that human error or conscious or unconscious bias will unjustly change the course of a student’s life. Although FIRE believes a unanimous finding should be required for suspension or expulsion, simply requiring a discussion (or two, in the case of an appealed case) among several impartial fact-finders would better help protect against error and bias, so long as their training materials were appropriately designed.

The Playbook’s rationale for demanding additional transparency from schools, as discussed in another section, is useful also for explaining the danger in using a single-investigator model:

Schools’ lack of transparency is particularly concerning given potential bias against individuals from marginalized communities. For example, survivors of color have historically had their claims of violence taken less seriously than white survivors, and accused men of color have received harsher sanctions than white men accused of similar offenses. [Footnotes omitted.]

It is commendable, too, that when recommending “partnership[s] with existing community- based organizations to provide students with counseling, health care, mental health care, victim advocacy, and legal assistance services,” Know Your IX explicitly states that these should “include services for respondents as well.”

All of these points may seem basic to experienced due process advocates, but concerns over accused students’ rights are often dismissed as not significant or even as propaganda and a symptom of rape culture. And as FIRE has pointed out many times before, students at colleges and universities across the country are not guaranteed even these basic protections.

Indeed, some fundamental safeguards and potential remedies available in civil and criminal court cases — the ability to subpoena witnesses, testimony under oath, and the ability to put actual perpetrators in jail, for just a few examples — cannot exist in campus hearings. That’s why FIRE believes that allegations of sexual violence should be dealt with by law enforcement and adjudicated by courts, not by institutions of education.

This is a major split between FIRE and Know Your IX, which would guarantee complainants the right to “[h]ave reports of gender-based violence investigated and adjudicated in a campus conduct disciplinary proceeding … .” Schools are required by Title IX to take steps to address allegations of sexual misconduct, but they can do so by liberally providing remedies to complainants like academic and housing accommodations and mental health services.

As regular readers know, FIRE also disagrees with Know Your IX’s stance that institutions must use the “preponderance of the evidence” standard when adjudicating sexual misconduct cases. We’ve written before about the many differences between campus hearings and civil court cases, including Title IX cases, which use the preponderance standard.

It’s also not true, as Know Your IX asserts, that the Supreme Court’s definition of student-on-student sexual harassment in the 1999 case Davis v. Monroe County Board of Education was crafted “without justification” and in deviation from applicable law. FIRE has zealously and consistently objected to efforts to use broader definitions of harassment because they encompass constitutionally protected expression and would hinder a broad range of conversations about politics, history, science, and art, among other topics. These conversations have always been at the core of what the First Amendment was meant to protect — not just since 1999 — and likewise, the Court has consistently emphasized the particular importance of allowing unfettered discussion in the public university setting for decades.

Know Your IX’s recommendations should certainly not, therefore, be adopted in full by states or schools — nor should this blog post be taken as a comprehensive analysis of the Playbook. But despite several policy differences, it is refreshing to see a group whose mission centers on survivor advocacy also acknowledge that all students are disserved by the status quo and should be guaranteed certain basic rights in order to ensure a fair hearing.