Last week, Arkansas Governor Sarah Huckabee Sanders signed into law SB 365, a bill that codifies crucial due process protections before, during, and after campus disciplinary proceedings. FIRE Legislative Counsel Greg Y. Gonzalez testified in support of the bill in the Senate Education Committee.
SB 365, the Arkansas Student Due Process and Protection Act, provides an array of due process protections for students and student organizations facing suspension or expulsion. And it improves what was the status quo: Arkansas previously explicitly required a right to counsel only during an appeal of a disciplinary proceeding. This law amends that statute and provides far greater protections.
These protections include:
- The express presumption of innocence.
- The right to the active assistance of an attorney or advisor throughout the process.
- The right to cross-examination.
- Reasonable, continuous access to the administrative file and all of the evidence in the institution’s possession, including evidence that might demonstrate the accused’s innocence.
- Impartiality from the hearing panel, including a prohibition against one person filling multiple roles during the adjudication process.
Unfortunately, universities often forgo crucial due process protections when they are not mandated to provide them. FIRE’s most recent Spotlight on Due Process Report shows that, since the adoption of the current Title IX regulations in 2020, “institutions have shown a consistent unwillingness to apply the procedural protections mandated for Title IX proceedings to contexts in which such protections are not legally required.” In practice, this means students going through a disciplinary process in Title IX cases are protected by policies that require, for example, active assistance of counsel per the 2020 regulations. However, in non-Title IX cases, universities often employ a disciplinary system that lacks even the most basic procedural protections.
“Due process is not a partisan issue and no university should deny students their rights to these protections.”
Further, the Department of Education is in the process of gutting the Title IX regulations through new pending regulations that, if finalized, would constitute a severe rollback of First Amendment and due process protections for students undergoing disciplinary proceedings on campus. Once again, our research shows that “unless required to provide those rights, schools typically will not do so.” Indeed, these protections could not come at a better time for Arkansas’s students and student organizations.
Importantly, the bill provides protections to accused and complainants alike. During his testimony to the Senate Education Committee, Greg emphasized that “This is not a one-sided bill. It also provides protections for the complaining student or organizations, such as a right to be represented by an attorney or non-attorney advocate, and continuing access to the administrative file.”
The bill garnered bipartisan support, passing both chambers unanimously. This comes on the heels of two similar bills signed into law by the governors of Kentucky and Louisiana last year, which also received strong bipartisan support. As Greg noted in his testimony, “Due process is not a partisan issue and no university should deny students their rights to these protections.”
FIRE is thankful to Senator Missy Irvin for introducing the bill, the legislature for its overwhelming support, and Governor Sanders for signing it into law.