Many colleges and universities take the summer to review and revise their institutional policies, including their disciplinary procedures. Ideally, this process serves as an opportunity to afford students more clarity and greater protection against erroneous findings of misconduct. On Aug. 1, the University of Delaware released a new non-discrimination policy, and a month before that, it released a new sexual misconduct policy. Unfortunately, UD’s new policies represent a missed opportunity and an illustration of some all-too-typical failings of campus disciplinary procedures.
It’s worth noting first that there appears to be substantial overlap between the two policies, as they both cover sex-based discrimination and harassment. This means that students accused of a single violation may have to navigate two separate sets of written procedures in order to ensure everything is proceeding as the university promised. Aside from minor differences in language, the two policies seem overwhelmingly the same. If my understanding is correct, it stands to reason that UD could have simply released one policy to cover all cases involving discrimination based on protected classes. If not, at minimum, students accused of a violation that falls under both policies are likely to be confused about their rights and what to expect from the disciplinary process.
That said, the two policies share many shortcomings.
Perhaps most centrally, UD utilizes a “single investigator” model in which just one person interviews parties separately, decides which witnesses’ testimony and other evidence to consider, decides what questions to ask and how to ask them, and ultimately makes a decision about the respondent’s guilt or innocence. In other words, one fallible and potentially biased human being has sole control over the case until the sanctioning stage. As one federal judge wrote in rebuking Brandeis University for its single investigator system,
The dangers of combining in a single individual the power to investigate, prosecute, and convict, with little effective power of review, are obvious. No matter how well-intentioned, such a person may have preconceptions and biases, may make mistakes, and may reach premature conclusions.
Moreover, neither party may conduct cross-examination, which the Supreme Court has called the “greatest legal engine ever invented for the discovery of truth.” Particularly in cases offering little concrete evidence and few witnesses (as is common in sexual misconduct cases), real-time questioning by opposing parties is an essential tool to help a fact-finder discover what really happened.
Making matters worse, students accused of misconduct under these policies are not guaranteed access to all exculpatory and inculpatory evidence and the time to prepare their defenses before making their arguments to the investigator. The policies do not even guarantee that the respondent will be informed with specificity which policies he or she purportedly violated, by what alleged actions, and against whom. They are given an “outline” of the allegations, but it is not clear what information this contains; it may not be sufficient to allow respondents to prepare their defenses.
Both parties are allowed to review the investigator’s draft report after the investigation is completed and to provide a written response. This report, however, may be redacted as the investigator deems “necessary to protect the privacy interests of the Complainant, Respondent or other witnesses.” Any redaction could impede the respondent’s ability to question witnesses and reveal exculpatory information. UD’s sexual misconduct policy also specifies that the report will include only a “summary” of information, testimony, and facts, leaving the investigator a great deal of discretion to omit information that could be useful to either party.
Parties may have two “support persons” with them during proceedings, but those individuals may not actively participate. In order to ensure both the complainant’s and respondent’s rights are protected, UD should allow active participation by advisors, including legal counsel (if the party so desires, and at his or her expense).
UD also allows a student to be expelled by a simple majority of the sanctioning panel. Particularly in light of the other procedural safeguards missing from UD’s procedures and the low, “more likely than not” standard of proof used under both policies, UD should at the very least require a unanimous panel decision in order to expel a student from the university.
The policies do share some positive aspects. Both policies allow students to appeal findings against them in cases where there is new evidence, where the findings were not supported by evidence, and where there were procedural errors. Both provide mechanisms to challenge investigators and members of the sanction panel for bias. Both policies clearly state a presumption of innocence until the respondent is proven guilty. These safeguards are essential in order to provide students with fair disciplinary hearings.
Even with respect to these elements, though, there is room for improvement. UD could improve its policies by explicitly allowing challenges to decision-makers based on bias before the appeals stage. It also could allow parties to keep copies of the investigator’s draft and final reports, in order to better review the case for potential errors. Finally, it could state that a respondent’s decision not to speak in their defense will not be held against them.
While we have focused here on the University of Delaware in particular, these problems are hardly unique to UD; they are typical at colleges and universities across the country. How typical? You’ll see; FIRE has more in-depth analysis of disciplinary procedures across the country coming soon.