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Nationwide Survey Shows Overwhelming Support for FIRE’s Position on Due Process, Right to Counsel

By September 10, 2015

With sexual assault on campus so much in the news lately, and with FIRE’s concerns about campus due process increasingly being recognized as real problems that need to be addressed as part of the reform process, it has so far been hard to know where the average American voter stands on the issues. That’s why FIRE was pleased to see the results of a newly released poll on the topic of campus due process. The poll, conducted by the firm of Penn Schoen Berland (founded by Bill and Hillary Clinton pollster and adviser Mark Penn), was commissioned by the Fraternity and Sorority Political Action Fund. The entire agenda of key findings is available online, but we’d like to point out some of the more interesting findings of this poll of 1,021 likely voters. (The margin of error is +/- 3.07 percent.)

The poll’s headline finding was that 91 percent of likely voters believed that local law enforcement, not college administrators, “should be primarily in charge of investigating alleged sexual assaults on college campuses.” While FIRE has been criticized for taking this position (including by opposing advocates at a Congressional hearing today), we had a feeling—and a great deal of anecdotal evidence—that most people agreed with us that when it comes to sexual crimes, law enforcement should be taking the lead.

College administrators may be well-meaning and determined, but the idea that they can do a comparable job to the justice system in deciding the truth or falsity of sexual assault allegations, despite having no real access to forensic evidence, no sworn testimony, no ability to subpoena witnesses, no lawyers for the parties, and numerous other shortcomings, is a fantasy. Unsurprisingly, the vast majority of American likely voters agree with FIRE that sexual crimes should be a matter for law enforcement, not college tribunals.

Equally noteworthy for FIRE was the finding that the same overwhelming majority of 91 percent of likely voters believe that “students who are tried in university investigations for sexual assault should have the right to access counsel at their own expense.” FIRE has been at the forefront of pushing for the right to counsel for students accused of campus crimes, and has aided the passage of laws guaranteeing just that in North Carolina (the first such law in the nation) and North Dakota, with more such pushes planned. While this movement has come under heavy opposition from college administrators (who often have outsized influence at the state level), it has been quite popular with legislators and the public. That 91 percent support number, then, is not surprising, but it is heartening—and we hope that more students will have the right to counsel very soon.

Other important findings among likely voters include:

  • 80 percent support the right to cross-examine opposing witnesses in college tribunals.
  • 87 percent support the idea that “law enforcement should be allowed a brief, exclusive window to investigate allegations of crimes of sexual violence before universities and colleges can launch their own investigations.”
  • 82 percent support allowing colleges to use a higher standard of proof than “preponderance of the evidence” in campus sexual assault trials.
  • 81 percent support the idea that “student organizations should not be sanctioned by the university unless an investigation has been concluded.”

The entirety of the poll is worth reading. Overall, it’s a striking illustration of how out of touch college administrators can be with the ideas of justice that prevail for the average American voter, who tends to be rather fond of quaint ideas such as “having a lawyer,” “having the police investigate crimes,” and “not punishing people until they are found guilty.”

If only colleges and the Department of Education’s Office for Civil Rights were similarly enamored.