Yesterday, I had the privilege of testifying before the Georgia House of Representatives on how students at campuses across the country are being denied due process, due in large part to overreach by the federal government in its enforcement of Title IX guidance. You can view my testimony via YouTube (starting at about four and a half minutes in, but the first few minutes are good for context) or download a video of the entire hearing before the Higher Education subcommittee of the Georgia House of Representatives’ Appropriations Committee. It was a very eventful and revealing two and a half hours. A report from Atlanta’s Channel 11 News hits some of the highlights.
For those who don’t have time for that, though, and are interested in FIRE’s take on due process at Georgia Tech and other universities, I have published the remarks I prepared beforehand below. (Because I was last to testify and others before me covered many of the same topics, I did not deliver every paragraph of these remarks.)
Testimony by Robert L. Shibley, J.D., Executive Director of the Foundation for Individual Rights in Education (FIRE), January 25, 2016
Thank you very much for inviting me to testify today about the crucial importance of due process on Georgia’s campuses. FIRE, the Foundation for Individual Rights in Education, was founded in 1999 to defend freedom of speech, legal equality, due process, religious liberty, and sanctity of conscience on America’s college campuses. Since then, we have won more than 200 victories on behalf of students and faculty members whose rights were unjustly denied, defeated nearly 150 repressive campus speech in order to advance freedom of expression for more than 2.4 million students, and educated millions of Americans about the problem of censorship and injustice on campus. But over the past five years, thanks in large part to unprecedented intervention by the federal government, the situation for due process, particularly, has gotten markedly worse. Students are routinely deemed harassers, abusers, or rapists, and suspended or expelled from school without so much as a hearing.
Since 2011, more than 80 students nationwide have filed lawsuits alleging they were denied fundamental fairness in campus sexual assault proceedings—and two of the most recent of those lawsuits were filed in the just the last couple of months against Georgia Tech.
The number one most common question I get from everyone—from legislators, to parents, to members of the public when they hear about the travesty of campus justice—is some version of this: “Why in the world are campuses holding sexual assault trials? Shouldn’t that be a matter for the police?” First of all, yes, it should be a matter for the police. Most forms of sexual assault are felony crimes, and campuses are not enclaves free of the law. For the protection of everyone, sexual predators need to be removed not just from campus but also from the streets. And colleges do not even come close to having the ability to competently decide whether someone has committed a grave felony.
But right now, colleges have no choice, thanks to the federal government’s current interpretation of Title IX, the law against sex discrimination in federally funded education programs. In April 2011, the federal Department of Education’s Office for Civil Rights, or OCR, issued a “Dear Colleague” letter mandating that schools judge students’ guilt or innocence of sexual misconduct using a “preponderance of the evidence” standard—a mere 50.01 percent likelihood that the offense was committed. OCR also “strongly discourage[d]” schools from allowing the parties to personally question or cross-examine each other, despite the fact that cross-examination is, as the Supreme Court has written, “the greatest legal engine ever invented for the discovery of the truth.”
FIRE and many others believe this mandate is unlawful, but it is nevertheless a reality on the ground that has made the shameful lack of other due process protections for students even more acute. Due process is, at bottom, the collection of mechanisms that makes sure that when we are accused of a crime or other wrongdoing, we get a fair hearing. Virtually any American would recognize many of them.
For instance, Americans expect trials to be presided over by experienced, impartial judges. At either party's request, the truth of the allegations is 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. Rules exclude hearsay, rumors, and other irrelevant or unreliable information. Testimony is given under oath, with liars subject to perjury prosecution. And, of course, there’s the Fifth Amendment protection against self-incrimination.
Guess how many of these you can count on having if you’re being tried in a campus court? None of them. Some campuses offer some of them. Virtually no campus, in Georgia or anywhere else, guarantees all of them. And yet these are protections developed over nearly a thousand years of Anglo-American jurisprudence dating back to the Magna Carta.
Georgia is no exception to the nationwide rash of due process problems. Many colleges in Georgia and other states have dispensed with a hearing in sexual misconduct cases in favor of an investigative model where one person (or a very small number of people) investigates and decides the outcome of a case without holding a hearing or even giving the parties an opportunity to confront one another.
To see how claims of sexual misconduct and discrimination are increasingly being treated, consider East Georgia State College. At East Georgia State, "The complainant and the respondent(s) will be interviewed separately by the Title IX Coordinator, or her designee, during which time they should present any information in support of their respective positions. ... Interviews with the Title IX Coordinator constitute the hearing."
Did you manage to get an attorney? He or she can’t say anything. Do you want to directly question your accuser’s story? Not only can you not do that, you aren’t even entitled to see what he or she said. Do you have questions for witnesses? You don’t get to ask them. Would you like to see all the evidence against you? You’re not entitled to it. Is the case against you based on hearsay and rumors? It doesn’t matter, if the investigator believes them. Is your accuser under oath? No, he or she is not. Would you like to be judged by your peers? Too bad; you’re going to be judged by your prosecutor. Did new information come to light after your questioning? That’s won’t help; at an appeal, “no new information may be presented.” And, of course, there’s no mention of the right to remain silent.
Other schools in Georgia using a single investigator model include Clayton State University, Kennesaw State University, the University of West Georgia, the University of Georgia—whose policies are very similar to East Georgia State’s—and, perhaps most notably, Georgia Tech.
I say “perhaps most notably” because Georgia Tech is currently facing two federal lawsuits from students, both of whom allege that Georgia Tech’s single investigator, Peter Paquette, abused his authority in that role. Among other things, the lawsuits allege that Paquette withheld critical evidence, failed to interview critical witnesses, refused to let the accused see the testimony against them, drafted investigative reports that included rumor and innuendo (such as an unidentified witness’ statement that the plaintiff was “unpleasant and creepy”), refused to recuse himself despite the fact that he “worked very closely” with one accuser in her role as a peer sexual violence educator, and generally acted in a biased fashion, even laughing at one plaintiff’s attorney as he pleaded for Paquette to interview some key witnesses.
This is only the students’ side of the story, and a court has not yet ruled on the veracity of these complaints. And a court, not the legislature, is the right place to do so. But you will notice, I hope, that the alleged abuses that I mentioned from the lawsuits are all problems that the due process protections I mentioned before—the very protections that East Georgia State, Georgia Tech, and other Georgia schools have abandoned—were designed precisely to avoid.
Nobody should be surprised by such complaints against any single investigator; if we could always rely on a lone authority figure to be competent and totally unbiased in dealing with crimes, we wouldn’t have come up with police, courts, prosecutors, defense attorneys, and so forth. Yet in the current campus climate, the public can only hope that colleges will somehow produce a class of Title IX Coordinators and single investigators with the wisdom of King Solomon, all the while knowing that any such system, no matter where it is established, is far more likely to produce Inspector Javert.
And it certainly looks like it has. Along with the aforementioned lawsuits, just this weekend, Jim Galloway of the Atlanta Journal-Constitution recalled an incident last year in which members of Phi Delta Theta fraternity at Georgia Tech were accused of shouting racial slurs out of windows at a fellow student. Evidently, the fraternity was denied the ability to play intramural sports or have socials and ordered to undergo sensitivity training despite security video of the student walking by “unflinchingly” and the fact that the windows in question had been sealed for years.
History is replete with situations where mere innocence is no defense to an accusation. Due process is a free society’s answer to this problem, and when it is weakened, miscarriages of justice can happen to anyone. And if history is any guide, that “anyone” will disproportionately be composed of members of political, racial, or ethnic minorities, or of unpopular groups. Indeed, a number of Harvard Law School professors including Janet Halley and Jeannie Suk have been warning about this.
Last February in the Harvard Law Review, Halley wrote, “Case after Harvard case that has come to my attention, including several in which I have played some advocacy or adjudication role, has involved black male respondents.” A lawsuit filed last month against the University of Findlay in Ohio alleges that since 2013, 100 percent of the students expelled for sexual assault have been African American males, despite the fact that they make up only 1.7 percent of the student population.
That this could happen when due process is neglected should be no surprise at all. Just as the First Amendment is most important when dealing with unpopular speech, due process is most important to accused parties who might otherwise not receive a fair trial. Properly implemented, it includes safeguards against both conscious and unconscious bias, racial and otherwise. But campuses have dispensed with most of these protections. What do they think will happen?
At this point, solving the due process crisis on campus requires a legislative solution. Most importantly, state legislatures can provide students specific protections to counteract the damage that OCR has done in this area. North Carolina, North Dakota, and Arkansas have all passed right-to-counsel legislation, guaranteeing public university students the right to hire a lawyer to participate in campus disciplinary proceedings. Two bills recently introduced in Congress would also shore up students’ due process rights by securing the right to counsel, eliminating the single investigator model, and requiring universities to disclose exculpatory evidence to accused students—something they, shockingly, don’t always do.
But the Georgia legislature need not and should not wait for Congress to act. It has the power to require that Georgia public institutions guarantee a decent baseline of due process rights to students and faculty accused of disciplinary offenses.
The sooner action is taken to shore up fairness and justice for Georgia college students, the better—not just for students, but for Georgia taxpayers. Indeed, the most recent landmark federal case about due process comes straight out of Valdosta, Georgia, and Valdosta State University, whose former president summarily expelled a student for posting a collage on Facebook that made fun of the president’s plans to build two new parking garages. That case cost Georgia and its insurers $900,000—and that’s just in plaintiff’s damages and attorneys’ fees. The state also had to pay eight years of its own attorneys’ fees, including two trips to federal appellate court.
Did this mistake cost one million dollars? Undoubtedly. Two million? Quite possibly. The total cost wasn’t made public, but I know this: It was ultimately paid for by Georgia taxpayers. And it could have been entirely avoided had Valdosta State’s president respected due process. How many more million-dollar mistakes will it take for Georgia universities to learn to respect due process and treat students with fairness and decency? My hope is that the legislature will act soon enough to make that number zero.
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