Congressional Staffers Briefed on Campus Due Process Needs

October 21, 2015

By Ashe Schow at Washington Examiner

Because due process rights aren’t apparently considered when discussing campus sexual assault, congressional staffers on Monday had to be briefed about them by the Foundation for Individual Rights in Education.

FIRE staffers Joseph Cohn, Shelby Emmett and Samantha Harris met with congressional staffers to discuss the lack of due process rights afforded to college students accused of sexual assault, and provided analysis of current legislation on the subject.

FIRE discussed the need for accused students to have access to the evidence against them (because such an obvious right is currently not afforded to college students) and the elimination of conflicts of interest among campus investigators. Currently, the person investigating a sexual assault claim can also be an advocate for the accuser, producing a clear bias for an allegedly impartial investigator.

FIRE also asked the staffers to reconsider the “preponderance of evidence” standard, which requires campus adjudicators to be only slightly (50.01 percent) sure that an assault happened to deliver a guilty verdict. This means that they can find a student responsible when they’re 49.99 percent sure the assault didn’t happen.

“When coupled with other protections like active representation of counsel, ability to call witnesses and cross-examine them, and the right to cross-examine an accuser, the preponderance standard might not be as damaging,” FIRE told the staffers. “But these other protections do not typically exist in campus sexual assault proceedings, where use of the preponderance standard jeopardizes fundamental fairness.”

When discussing the right for students — accuser and accused — to have access to the assistance of counsel, Cohn described the current process as making no sense.

“It’s like having a surgeon in the room who can’t actually operate,” Cohn said.

In some schools, students can have an attorney present, but the attorney can’t participate in the hearing or do anything more than occasionally whisper to the student. At many other schools, students can only have an “adviser” from the school, who has no legal training and may have little knowledge of the campus hearing process.

It’s a sad state of affairs when congress has to be briefed about constitutional protections, but here we are.