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A non-profit, non-partisan group, the Foundation for Individual Rights in Education (FIRE), which advocates for free-speech and due process rights in higher education, last year surveyed 53 top-ranked U.S. colleges and universities and found major deficiencies in how those rights are protected in campus investigations of alleged sexual misconduct.

That leads to a related question: what rights and procedures do higher-education students view as desirable for American colleges and universities to provide in such cases? FIRE’s new study, Proceeding Accordingly: What Students Think about Due Process on Campus, released in mid-June, casts significant new light on that question.

To obtain objective data on the actual opinions and attitudes, FIRE used a grant from the John Templeton Foundation to hire YouGov, a well-respected, non-partisan polling and research firm, to design and conduct a nationwide survey for current undergraduates in two- or four-year U.S educational institutions.

During two weeks from late January to mid-February this year, about 2,450 students pulled from a large YouGov database took an average of eight minutes to complete an online opinion survey of their views on appropriate due process protections in one of three college investigative scenarios: a student alleged to have “broken a rule,” another accused of having “engaged in sexual misconduct,” or an underage student who supposedly “drank alcohol.”

After the student responses were weighted for gender, race and age, and the samples adjusted in line with a larger national dataset, the survey had nearly 750 responses for each scenario, and 2,225 responses overall. The survey responses for all respondents were calculated to have a margin of error of +/- 2.2% at the 95% confidence level, and +/-3.8% for each of the subgroups assessing one of the three scenarios.

The most striking finding of the survey: by overwhelming margins, students supported fundamental due process protections followed by few top colleges and discarded or discarded by the Department of Education’s regulations and “guidance” issued during the Obama administration on schools’ obligations under Title IX (which obligates recipients of federal funds to investigate and act against sexual harassment or sexual misconduct).

Until those commands were rescinded by the incoming Trump administration officials, colleges were directed to use a “preponderance of the evidence” standard in their disciplinary proceedings against students under Title IX. The much-criticized “Dear Colleague” letter circulated by the Department of Education in April 2011 tried to overcome any presumption of innocence for the accused, and strongly discouraged allowing defendants to cross-examine witnesses.

In sharp contrast, 80% of students responding to the new survey supported giving a student accused of sexual misconduct in a college disciplinary proceeding the presumption of innocence (as the student would receive in a criminal trial); only 14 of the top 53 colleges FIRE had earlier surveyed permitted that.

The student survey also showed broad support for giving accused students the right to present additional evidence at a disciplinary hearing (88%), receive written notice of allegations against them (86%), and having an advisor to assist them at a disciplinary hearing (77%). If the student is accused of a criminal offense, 80% believe a lawyer’s assistance should be allowed.

This article is part 2 in the series A primer on College and University Hearings

Previous articles 1 & 2 have spelled out why college or graduate schools often do a seriously bad job handling investigations, hearings and decisions on disciplinary charges against students. They’ve detailed how students are often denied due process in many campus disciplinary hearings that, for example, forbid students from having legal representation during hearings, fail to spell out or properly investigate charges, or give school officials virtual carte blanche in presenting and deciding cases.

Any lawyer who has tried to help students in school disciplinary proceedings will have stories of almost unbelievably unfair procedures, unlike those found in any hearings elsewhere, and painfully amateurish or arbitrary decision making.

For example, I once represented a client at a school disciplinary hearing in which the top campus security official offered testimony that two other students had reported my client had used drugs during the current semester. The “testimony” contained no details whatsoever on where or when the alleged drug use took place. The “informants” also chose to remain anonymous, and school officials bringing the case made no attempt to reveal the informants’ identity, much less their reliability or potential animus towards the accused. It probably goes without saying there was no opportunity to confront or cross-examine the nameless accusers.

Adding to the proceeding’s absurdity: the charges the student faced had nothing to do with his use or possession of drugs. In any objective criminal court, the “evidence” would have been excluded as hearsay, irrelevant and prejudicial. Similarly, the accused would have been accorded the constitutional right to confront and cross-examine accusers — but not at this institution of higher learning.

As recognition mounts of the serious flaws in college disciplinary hearings, a variety of proposals have been offered to mend it. Some of these suggestions would in fact make things far worse, not better. The U.S. Department of Education’s Office of Civil Rights (OCR), which is supposed to protect students’ civil rights on campus, in fact has taken the lead in suggesting new ways schools should trample on the rights of students facing school disciplinary hearings.

For example, when post-secondary students face school disciplinary hearings on charges of sexual misconduct (the term encompasses a wide range of accusations, ranging from unwelcome advances up to assaults), OCR has urged schools not to accord an accused the presumption of innocence, which is automatic in any real court in the land.

Instead, OCR argues for a “preponderance of the evidence” standard — meaning that whoever is deciding the case (usually a group of academics, school staffers or students, all likely to have little or no appreciation of the civil and legal rights issues) need only view the case against an accused as slightly stronger than the case presented by the defense.

When Harvard University set rules to be used university-wide in disciplinary hearings on complaints of sexual misconduct, a good part of its law faculty (whose views had not been sought) joined a letter slamming the procedures, closely based on OCR’s recommendations, for lacking “the most basic elements of fairness and due process” and being “overwhelmingly stacked against the accused.” Why would a college pay attention to OCR’s “guidance”? Perhaps because the agency has the authority to block all federal funds to schools it sees as failing to safeguard students’ rights — as measured by its unfair interpretations.

That’s not the end of dubious ideas bubbling out of the federal government. A White House federal task force working on campus sexual assaults touted this brainstorm well over a year ago: turning nearly all phases of such cases to a “single investigator,” who would investigate the case; interview the accuser, the accused and any witnesses; and then decide the case or advise a school tribunal on how to resolve it.

Not surprisingly, a non-profit group dedicated to protecting student rights in school disciplinary hearings lambasted this proposal as empowering one likely ill-trained or untrained student or staffer to serve as an all-in-one “detective, prosecutor and judge.” A far better suggestion would be, in appropriate cases, for campus officials to bring in an independent investigator, one trained and experienced in the ways student rights would be protected in the world outside the campus gates.

The North Carolina legislature recently adopted a first-in-the-nation law, which deserves wider consideration: it guarantees public college and university students the right to hire and be accompanied by an advocate, who could “fully participate” in campus disciplinary hearings.

The new law isn’t perfect: it exempts proceedings run solely by students, and doesn’t apply to the state’s private-school students. But getting similar provisions adopted by other states, and having OCR change direction to promote, rather than campaign against, the rights of students accused in school disciplinary proceedings, would be significant improvements.

This article is part 3 in the series A primer on College and University Hearings

The failure of schools to fairly handle student disciplinary proceedings is no longer a well-hidden secret, as recent court decisions are spelling out in some detail. Take, for instance, the decision handed down in July this year by a state court in California in the case of Doe v. Regents of the University of California, San Diego, which overturned a disciplinary panel’s decision after one student complained of sexual misconduct by another, finding the outcome unsupported by significant facts and the proceeding seriously unfair to the accused student.

I will be looking at this case in a future article in the context of illustrating problems raised by new “yes means yes” laws on proving consensual sex, which essentially strip defendants of the presumption of innocence. That aside, let me briefly say the court’s overturning of the university’s actions did not hinge on minor or technical lapses. Instead, the court invalidated the disciplinary hearing outcome because it was so fundamentally unfair to the accused student, seen in the multiple ways the process denied basic constitutional rights.

First, under the 6th Amendment, accused persons have the right to confront accusers and cross-examine witnesses. The hearing panel (made up of three out-of-their-depth students, with a presiding university staffer running the show) accepted and relied on a report from a university investigative staffer who did not appear at the hearing. The university also withheld from the accused statements made to the investigator and the accuser’s statement.

Surely, you might imagine, the accused student’s lawyer must have pointed this out to the panel. You’d be wrong, since although the university allowed the student to be accompanied by a lawyer (many schools don’t), it did not allow the lawyer to speak, just to pass notes to the client.

Nor could the accused student ask questions needed for his defense. Under the school’s disciplinary hearing procedures, the accused student — but not the university official essentially acting as a prosecutor — had to submit questions in advance in writing to the presiding university official, who had complete discretion to accept, reject or revise them.

In this case, the presiding officer opted to allow just nine out of 32 highly relevant questions submitted in advance by the accused student, and permitted the key witness to refuse to answer some. Of course, requiring questions to be submitted in advance makes it impossible to ask questions to follow up on answers, and basically makes it impossible to conduct a true cross-examination.

The university staffer who presented the case against the student also did things, whether intentionally or not, that in a real world prosecution would get a case quickly thrown out. He falsely claimed the student had previously been charged with similar acts, and only presented the investigator’s report in his closing argument, when it was too late for the accused to address it.

The hearing panel also made much of the accused’s decision not to testify; the trial court found this violated the accused student’s 5th amendment right to remain silent. And, each time the accused student appealed the hearing’s decision through the university’s appeal process, his penalties were increased; the state court judge found that smacked of unlawful retaliation for exercising his appeal rights.

(The next article in this series will examine several proposals, both good and bad, for changing college disciplinary hearing procedures.)

This article is part 1 in the series A primer on College and University Hearings

How’s this for a nightmare? You’re getting a post-secondary education at a public college or grad school, doing well enough in your studies, in which you have invested years of your time and from which you have accumulated tens of thousands of dollars or more in student debt.

Then one day, out of the blue, you’re told your presence is urgently required in a university official’s office. There you’re informed you’ve been accused of a serious, but only vaguely described, offense against university rules, and will face a disciplinary hearing – and that could mean you’ll be suspended from school or even expelled.

This comes as a surprise and a shock to you; you’ve never been in any sort of trouble at school before. And, just as you have only a sketchy idea of the charges you may be facing, you have only the vaguest understanding of how the disciplinary hearing might work, or how to go about defending yourself, which of course you plan to do. After all, getting kicked out of school for misconduct could jeopardize not just your reputation, but also your ability to complete your education, pursue many professions or maybe even earn a living.

The bad news keeps coming: when you inquire about the disciplinary hearing, you may be told that you won’t be permitted to bring in an attorney to help you make your case and protect your rights. You may be told that an attorney may accompany you, but may only act as your advisor and can have no formal part in the hearing. And if you’re planning to confront your accusers, better think again: you may not be allowed to challenge their statements, or even question them.

You’re probably asking yourself: exactly who invented this fantasy, Orwell or Kafka? But how can this be, you ask; after all, if you had been arrested and faced a criminal charge, the 6th Amendment gives you the rights to have a lawyer defend you, to have the charges against you spelled out, and to face your accusers and cross-examine them.

But unless the school disciplinary hearing involves criminal charges, the school doesn’t have to give you the same rights there (even though what happens at the school hearing might be offered as evidence against you if you’re later charged with a crime, and a school hearing can have similarly drastic consequences for your reputation and career).

You only have limited Due Process rights in a higher education setting because courts have historically treated getting a college education as a privilege, not a right. They have been reluctant to interfere with college administrators’ supposed expertise in their realm, instead according them wide-ranging in loco parentis powers over their students.

In the landmark court decision Dixon v. Alabama State Board of Education, a federal appeals court in 1961 ruled constitutional due process prevented black students at a state college from being expelled without a stated reason (apparently they had taken part in an off-campus civil rights demonstration), and administrators could not impose arbitrary or unfair rules, like depriving them of the right to know the charges against them or to have a hearing.

Even so, that decision did not specify what type of hearing was required, saying that could vary with the case’s circumstances. It also was silent on whether a school could lawfully exclude lawyers, and added that it was not mandating “a full-dress judicial hearing, with the right to cross-examine witnesses.” The decision was also limited to colleges run by a government entity, providing no precedent for students in disciplinary hearings at private colleges and universities.

So that is where we are now. Public and private schools – some with the bare minimum, some with more protections – but even at schools with the greatest protections, the student will still not have rights close to those of a criminal defendant.

(The next article in this series will examine ways in which college disciplinary hearings can lack fairness and deprive students of basic rights).