Last week, the New York Times Editorial Board addressed the issue of campus sexual assault. Unfortunately, the Board missed an opportunity to address many serious concerns held by FIRE and others about university policies and practices that threaten the due process rights of students accused of sexual misconduct.
The Times editorial notes that skeptics of the systems currently in place at colleges and universities “doubt that administrators are equipped to adjudicate cases that might well be subject to criminal prosecution off campus.” Though we cannot speak on behalf of all due process advocates, FIRE believes college administrators are not equipped to adjudicate these cases, and we doubt they ever can be.
As the Times recognizes, there are differences between campus hearings and criminal trials that can leave an accused student more vulnerable:
There is perhaps some risk that students accused of rape won’t feel equipped to properly defend themselves; the accused are not typically afforded due process protections, such as the right to remain silent, in these campus proceedings. In 2011, the Department of Education recommended that universities use “preponderance of the evidence” as the standard of proof instead of the higher “clear and convincing” standard, which it said was inappropriate for violations of civil rights law.
This is a good start to the discussion. As we’ve noted before here on The Torch, the fact that accused students have no right to remain silent without having their silence used against them doesn’t affect only the campus hearing—it pressures them into speaking in a forum where anything they say can be used against them in a criminal court proceeding, as well. Conducting a campus hearing without the active participation of an attorney advisor, therefore, sometimes amounts to students unknowingly waiving their Fifth Amendment rights.
However, the Times editorial did not adequately distinguish campus hearings from civil trials, and it overlooked the life-altering consequences that await students found responsible in campus sexual assault hearings:
Lower evidentiary standards seem justified since these are administrative proceedings in which the accused student might be facing expulsion, not a loss of liberty. The challenge for universities will be achieving the right balance — not ignoring complaints, as many have in the past, or denying the accused a fair shot at exoneration.
As FIRE detailed in our May 5, 2011, letter to the Office for Civil Rights in response to its April 4, 2011, “Dear Colleague” letter on sexual assault and sexual harassment, “an individual’s continued matriculation, reputation, and employment prospects” might all be damaged irreparably based on whether an untrained panel of staff and sometimes students concludes that it’s simply more likely than not that the accused student committed a violation.
My colleague Joe Cohn went into further detail about the differences between civil trials and campus hearings in an article for The Chronicle of Higher Education:
[T]o ensure fairness, reliability, and constitutionality, civil trials are presided over by experienced, impartial, and legally educated judges. At either party’s request, facts are determined by a jury of one’s peers. The parties have the right to representation by counsel, and a mandatory process of “discovery” ensures that all relevant evidence will be made available if the opposing party asks for it.
And speaking of evidence, strict rules apply that exclude hearsay, evidence of prior bad acts or crimes, and other information that is either irrelevant or unreliable. Moreover, all depositions and testimonies are given under oath or affirmation, with witnesses subject to perjury charges if they intentionally lie about material issues. The list goes on and on.
So which of those procedural protections are guaranteed in college disciplinary hearings? None.
Further, The New York Times’ framing of the circumstances as potentially problematic for the accused student does not take into account that the potential it cites has repeatedly materialized. Many students have already been expelled without a fair hearing. Perhaps FIRE’s most notorious due process case is that of former University of North Dakota student Caleb Warner, who in 2010 was banned from campus after the university found him guilty of sexual assault. But the evidence wasn’t there to support the finding; in fact, the evidence of Caleb’s innocence was so overwhelming that law enforcement officials issued a warrant for the arrest of his accuser for lying to them.
Judith Grossman wrote in to The New York Times to make these points—and she should know, as the mother of a student who was denied basic procedural safeguards after being accused of sexual assault. In her letter to the editor, she writes:
How distressing to read your statement that “the accused are not typically afforded due process protections” in campus proceedings. Why not? Why should the Constitution be surrendered at the campus gates? And why, in an effort to protect alleged victims, should the solution be to create another class of victims? Surely all of our students deserve fundamental fairness.
New cases like that of Grossman’s son are appearing with increasing frequency. Last month, for example, FIRE reported on a case at Occidental College in which a student was expelled for sexual assault despite text message evidence strongly indicating that the sex was consensual and that a clear double standard was being imposed on the accused student compared to his accuser.
It is true that Title IX necessitates some involvement by colleges and universities in sexual assault cases. But as we stated in our comment to the White House Task Force to Protect Students from Sexual Assault, there are many ways that institutions can meet their Title IX obligations that do not require them to decide the guilt or innocence of accused students—a task they are not competent to perform. The New York Times suggests that guidance from the federal government “could bring more order to the process without unduly burdening administrators.” But as I wrote in June, university lawyers and administrators are already struggling to determine and carry out their obligations under Title IX with hundreds of pages of regulations and “guidance” and “Dear Colleague” letters indicating what they must or should do to keep federal funding.
The problem of sexual assault on campus is a serious one. Colleges and universities are not equipped to handle either individual cases or the more widespread problem (however widespread it is) without significant help from law enforcement. Right now, institutions are incentivized to disregard accused students’ due process rights and are incapable of truly protecting a community from serial offenders by putting them in jail. FIRE hopes to see The New York Times recognize that additional guidance from the federal government—without fundamental changes to the status quo—will not provide an adequate solution.