New Title IX regulations are coming. FIRE’s newest report shows why reform is desperately needed.

December 11, 2019
  • REPORT: 7 in 10 top universities do not expressly guarantee the presumption of innocence in campus sexual misconduct proceedings.
  • ZERO surveyed institutions guarantee all basic due process protections, or even those required under the Department of Education’s proposed Title IX regulations.
  • Almost 9 in 10 universities earned a D or an F for sexual misconduct policies; proposed regulations would raise grades to C or better.

PHILADELPHIA, Dec. 11, 2019 — Innocent until proven guilty? Not on college campuses. 

Top universities fail to provide students accused of campus misconduct with fair procedures, according to a new report from the Foundation for Individual Rights in Education. 

With new Department of Education regulations on Title IX enforcement expected soon, FIRE’s report shows that colleges currently fail to provide students with even the most basic due process protections. This means that many colleges’ policies may have to be revised significantly after the regulations go into effect.

“Would you feel comfortable defending yourself without information about what you supposedly did wrong? Would you trust a jury that didn’t get a chance to see all the evidence? You shouldn’t — but college students across the country routinely face these troubling circumstances,” said FIRE’s Susan Kruth, lead author of the report. “Disciplinary procedures at top universities aren’t fundamentally fair because they don’t guarantee even the most basic safeguards against incorrect conclusions.”

Spotlight on Due Process 2019–2020” examines policies at 53 top national universities to see how many of 10 fundamental procedural safeguards they guarantee students. These include basic protections familiar to all Americans, such as the presumption of innocence, the right to impartial fact-finders, and the right to appeal. Of the 53 universities studied, 49 receive an overall D or F grade for guaranteeing no more than 4 of those 10 safeguards.

Most institutions maintain one set of policies for charges of sexual misconduct and another for all other non-academic misconduct, such as theft or physical assault. Notably, of the 22 institutions that received an F grade for their sexual misconduct policies, 17 have been sued by accused students over the lack of fair procedure.

Less than 30% of top universities expressly guarantee the presumption of innocence in all serious non-academic misconduct cases, and less than 60% explicitly require that fact-finders — the institution’s version of a jury — be impartial. Only 28% guarantee a meaningful hearing, where each party may see and hear the evidence being presented to fact-finders by the opposing party, before a finding of responsibility.

Although universities do not guarantee their students fair disciplinary procedures, it’s clear that students overwhelmingly want them to. Each element in FIRE’s report is supported by a majority of college students surveyed by YouGov for FIRE in 2018 about their views on campus due process protections:

  • 85% of students think their accused classmates should be presumed innocent until proven guilty, but only 28% of America’s top universities explicitly guarantee students that protection.
  • Although three-quarters of students support cross-examination, only 1 in 10 institutions guarantees students or their representatives a meaningful opportunity to cross-examine witnesses.

This landscape may shift if the proposed Department of Education regulations on Title IX — the 1972 law that prohibits sex discrimination in federally funded educational programs — are enacted. Today, 87% of institutions receive a D or F grade for their failure to protect the due process rights of students accused of sexual misconduct. Enacting only the proposed regulations would raise surveyed universities’ grades to a C or better. 

“All over the country, students accused of misconduct on campus routinely face life-altering consequences without any of the procedural protections one would expect in such serious cases,” said Samantha Harris, FIRE vice president for procedural advocacy. “It looks like the Department of Education’s new regulations will ensure greater due process for students involved in certain types of cases, but universities should already be providing these important protections in all cases of serious non-academic misconduct.”

Spotlight on Due Process 2019–2020” can be read in full on FIRE’s website. For more information about FIRE’s student survey, see “Proceeding Accordingly: What Students Think about Due Process on Campus.”

The Foundation for Individual Rights in Education (FIRE) is a nonpartisan, nonprofit organization dedicated to defending and sustaining the individual rights of students and faculty members at America’s colleges and universities. These rights include freedom of speech, freedom of association, due process, legal equality, religious liberty, and sanctity of conscience — the essential qualities of liberty.

CONTACT:

Daniel Burnett, Assistant Director of Communications, FIRE: 215-717-3473; media@thefire.org