By MIKE MANNO
A month ago, in our December 6 edition, this column explored the questions surrounding the concept of due process on college campuses, and especially in investigations of sexual abuse claims (Is Due Process An Outdated Concept? p. 4A). We evaluated the U. S. Department of Education’s proposed new rules establishing, not only substantive, but procedural due process rights for students accused of wrongdoing by college administrators.
Secretary Betsy DeVos has proposed the new rules after making some troubling findings about the unevenness of college disciplinary procedures; procedures that could result in suspension or expulsion of a student. Some of the problems Secretary DeVos is trying to alleviate include the lack of due process for accused students, the lack of uniform standards of procedure, as well as imposing a uniform standard of proof: “clear and convincing” as opposed to the less rigid “more likely than not.”
Of course those proposals were met by a chorus of nay-sayers: The ACLU, and several Democratic members of Congress, who claimed that the rules were an attack on women and other “vulnerable” students. Much of the reaction came in the wake of the Kavanaugh confirmation hearing where concepts such as presumption of innocence were being attacked as antiquated.
But just before Christmas, our friends at FIRE, The Foundation for Individual Rights in Education, released a study that substantially, if not wholly, supports Secretary DeVos and her proposed rules change. According to the report, policies at the top 53 universities (as determined by U. S. News & World Report) revealed that 47 received a grade of D or F based on 10 fundamental safeguards that should be guaranteed to every accused student, including the right of the presumption of innocence, the right to impartial fact-finders, the right to counsel, and the right to appeal.
Of the 104 policies reviewed — several colleges had multiple policies — not a single one received an A grade. Some of the specific findings: 73.6% of the colleges did not guarantee that students would be presumed innocent; only half the schools required that fact-finders, those given the authority to determine guilt or innocence, be impartial; fewer than a third of the schools guarantee a meaningful hearing; and 86.8% received a D or an F for protecting the due process rights of students accused of sexual misconduct,
In its methodology, FIRE used ten factors to rate the policies: A clearly stated presumption of innocence; timely written notice to the accused student before any meeting with an administrator or investigator; adequate time to prepare for a disciplinary hearing; right to impartial fact-finders; right to a meaningful hearing process; the right to present evidence to the fact-finder; right to question witnesses and cross-examination; the active participation of an advisor or attorney during the proceeding; right of appeal, and a requirement for a unanimous agreement supported by clear and convincing evidence for an expulsion.
“Alarmingly, 39 institutions (73.6% of rated schools) do not guarantee accused students the right to be presumed innocent until proven guilty.… Without it, other procedural safeguards still may not be enough to protect students from the risk of inaccurate findings of guilt,” the report stated.
The report also criticized the “more likely than not” or “preponderance of the evidence” standard in adjudicating guilt. It quoted from a 2018 federal case, Lee v. University of New Mexico, one of hundreds that have been filed in this area, in which the judge held that “preponderance of the evidence is not the proper standard for disciplinary investigations such as the one that led to [the student’s] expulsion….”
Echoing the complaints raised in my earlier column, the report also criticized the use of one person investigations. It cited a 2016 case, Doe v. Brandeis University, where a federal judge wrote: “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.”
As to the student’s ability to present evidence, the report found that in only 16 institutions (30.2%) do students have the right to present all relevant evidence directly to the fact-finders; and in 11 schools (20.8%) evidence is presented to a fact-finder whose decision must be finalized by another person. And in 26 schools (49.1%) students are limited to what evidence they can present, or cannot present any evidence directly to the fact-finder.
The report also criticized the construct used by some universities that the disciplinary process is not an adversarial one but an educational one. “To characterize that process as merely ‘educational’ is to ignore the very serious impact that the outcomes can have on student’s lives. Indeed, in response to a University of Notre Dame administrator’s testimony that the university’s sexual misconduct adjudication process was an ‘educational’ process (and thus that important procedural safeguards were unnecessary), a federal judge in Indiana put it bluntly: ‘This testimony is not credible. Being thrown out of school, not being permitted to graduate and forfeiting a semester’s worth of tuition is “punishment” in any reasonable sense of that term,’” citing Doe v. University of Notre Dame.
“[T]he presumption that all students accused of misconduct have a lesson to learn from the process makes sense only if one is presuming that the student is guilty of some sort of wrongdoing,” the report states, citing a Columbia University policy that the process is used to discuss accountability for their behavior as well as its impact on others and the community, which assumes the student has engaged in wrongful conduct.
And some institutions, such as the California Institute of Technology, have policies that warn against too much notice to the accused student for fear that “evidence and testimony could be destroyed or altered, hindering the ability to discover the truth essential in making a fair decision.” But as the report points out, “Though there is always the possibility that a party will destroy evidence, students need notice in order to obtain and offer for consideration the best evidence they can.”
All but two institutions included in the survey have a separate procedure for cases involving sexual misconduct. Of the remaining 51, 37 (69.8% of all rated colleges), are less protective of student rights. “While policies governing alleged sexual misconduct generally provide fewer procedural safeguards, these are often the cases in which procedural safeguards are most needed in order to ensure fundamental fairness and to protect accused students against the life-changing effects of erroneous findings of responsibility,” the report states.
A flat contradiction of the off-heard Kavanaugh refrain: “all women must be believed,” and “men should just shut-up.”
The report also criticized many colleges for having poorly drafted policies that are open to broad interpretation which leaves students confused; others that have multiple policies which do not tell students which policy governs a particular incident; and some have policies that are inaccessible, again leaving students ill informed.
The president and CEO of FIRE, Greg Lukianoff, was the co-author of the book I wrote about last week, The Coddling of the American Mind. Interestingly, both he and his co-author are Democrats. Hope springs eternal.
(You can contact Mike at: DeaconMike@q.com.)
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