Due process on campus is grim, and it may get even worse, according to new FIRE report | The Foundation for Individual Rights and Expression

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Due process on campus is grim, and it may get even worse, according to new FIRE report

FIRE’s 2022 Spotlight on Campus Due Process report shows campuses sidestep due process reforms. The Biden administration’s proposed Title IX regulations could usher in an even darker age for student due process rights.
Statue of Justice holding scales

FIRE’s fifth annual Spotlight on Campus Due Process report comes at a critical juncture for student due process rights. 

The Department of Education, at the direction of the Biden administration, is considering adopting new Title IX regulations that would eliminate vital due process protections for students accused of misconduct. FIRE opposes these regulations and said so publicly in an 89-page comment to the Department of Education in September. Now, our latest Spotlight on Campus Due Process report reveals what’s at stake if the proposed regulations are implemented.

The report rates 155 policies at 53 of America’s top universities, evaluating whether students are provided with procedural safeguards and fundamental fairness when navigating the campus disciplinary process. The short answer: No. But it could get much worse. 

New regulations threaten to reverse modest gains in procedural fairness

The proposed Title IX regulations would roll back many of the protections enshrined in current federal regulations that took effect in August 2020, including the right to a live hearing to contest claims, thus also eliminating the right to meaningful cross-examination. The current Title IX regulations improved due process rights when compared to the landscape prior to their implementation and even led to some sustained improvements in scores among non-Title IX campus sexual misconduct policies. 

Accordingly, policies adopted to comply with the current regulations routinely score highest at those institutions. In comparison with pre-2020 numbers, more of today’s students have the right to a live hearing, the right to cross-examine witnesses against them, and the right to be presumed innocent until proven guilty. 

As we have written before, “we cannot separate how we reach decisions from the justice of those decisions. In other words, the process by which we arrive at a verdict affects how confident we can be in the accuracy of that verdict.” Providing students with due process protections, as the current Title IX regulations have worked to do, is critical for ensuring outcomes that all parties can have confidence in.

Indeed, the positive impact of the current Title IX regulations extend even to policies not directly regulated by them. For example, policies regulating sexual misconduct not falling under Title IX (such as misconduct that occurs between a student and a non-student while home on summer break) have seen notable improvements. The average score for non-Title IX sexual misconduct policies increased by 40% since the regulations went into effect. While that average score still earns a D grade, the increase is the highest in the history of the report: The positive spillover effect of the current regulations is clear.

Cornell University and Georgia Institute of Technology performed best in the report, with each of their policies earning at least a B grade. Cornell also made history, with its non-sexual misconduct policy earning the first A grade in the five-year history of FIRE’s Spotlight on Campus Due Process report.

While the present landscape for campus due process leaves much to be desired, such a backslide may leave us calling these the “good old days.”

But overall, the findings in this report reveal that when forced to reexamine their policies, colleges chose to go out of their way to minimize the impact of new protections rather than design uniform, fair processes for all students. The University of Notre Dame stands out as the worst institution overall, as it is the only school that earned just one point (out a possible 20) for each of its non-Title IX misconduct procedures. 

Since the current regulations went into effect, colleges and universities have taken every opportunity to avoid providing due process across the board — even going so far as to create three separate disciplinary systems per campus to afford students as few protections as legally permissible. 

In practice, this means that most of the 53 colleges have three separate systems of disciplinary policies: one for sexual misconduct that takes place within the college’s educational program and is therefore covered by Title IX; one for sexual misconduct that the college believes it can punish but which did not take place in a context within its control (for example, between a student and a non-student while home on summer break); and one for all other non-academic offenses such as theft, alcohol use, and property destruction. 

This is why our Spotlight on Campus Due Process 2022 report rates over 150 policies among only 53 schools. It also means that students attempting to understand their rights on campus may have to review three separate — and often confusing — policy schemes. While institutions are legally permitted to take this convoluted approach, the fact that an overwhelming majority of them do so shows that the institutions have concluded that their interest in controlling every aspect of the disciplinary process outweighs any interest in providing adequate due process or communicating clear standards to students. 

That the Title IX regulations proposed in 2022 seek to roll back the most consequential improvements to campus due process protections in years only amplifies the already dire situation facing students on campuses across the country.

What’s next? Perhaps a return to the antiquated pre-2020 policies that undermined due process in the first place

While the present landscape for campus due process leaves much to be desired, such a backslide may leave us calling these the “good old days.”

The proposed regulations would eliminate many of the rights that currently see the widest gulf in scores between universities’ Title IX sexual misconduct policies and non-Title IX sexual misconduct policies, which leaves students with little reason to believe they will still have those rights once the proposed regulations take effect.

FIRE’s research makes clear that, when it comes to critical procedural protections and fundamental fairness, the Biden administration’s proposed regulations spell disaster for students.

For example, the proposed regulations will eliminate the current requirement that accused students be offered an opportunity to have a live hearing to contest the allegations against them. Currently 39 institutions’ (74%) Title IX policies earn at least one point for providing a meaningful live hearing process, compared to just 17 institutions’ (35%) non-Title IX sexual misconduct policies. 

By revoking the requirement to offer accused students an opportunity to have a live hearing to contest claims, the proposed regulations also eliminate the right to meaningfully cross-examine witnesses providing testimony against them as well as the right to active assistance of an advisor of choice as accused students navigate the process.

Can we fix it?

FIRE’s research makes clear that, when it comes to critical procedural protections and fundamental fairness, the Biden administration’s proposed regulations spell disaster for students.

However, most of the deficiencies identified in the Spotlight on Campus Due Process 2022 report can be readily fixed through policy revisions. While the proposed regulations would no longer require schools to provide many of the protections they are currently legally mandated to, it will ultimately be up to individual schools whether or not to do so. The question is not whether there’s a way to protect students’ due process right on campus, but whether schools have the will to do so. Those that do, have an ally in FIRE.

We stand ready to help institutions, lawmakers, and any other stakeholders who wish to revise bad disciplinary policies and procedures to protect due process and fundamental fairness on campus. We hope that the increased awareness brought forth by our report will enable more people and institutions to recognize the dire state of due process, and ultimately, work side-by-side with us to fix it.

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