Fairness Questioned

New report from FIRE says many colleges’ disciplinary systems deny students due process.

September 5, 2017
 

Few of the nation’s most prestigious institutions have created policies that ensure fair disciplinary procedures for students -- especially around sexual misconduct -- according to one prominent watchdog group for free speech and civil rights in academe.

The new report from the Foundation for Individual Rights in Education, or FIRE, assesses and assigns letter grades to the policies of 53 colleges and universities, a list pulled from U.S. News & World Report rankings.

These grades from FIRE come at a time when campus adjudication processes are under scrutiny, particularly when they concern sexual assault. Betsy DeVos, President Trump’s education secretary (and a FIRE donor), has publicly mulled changes to federal guidelines the Obama administration established directing how colleges should judge sexual assaults.

FIRE’s new ratings are intended to serve as much as a tool for influencing colleges as for informing the public.

The nonprofit is well-known for its database of how well institutions protect free expression on campus. In the past, when FIRE has scored colleges poorly, it has tried to work with institutions to shift its policies to its liking, and it will do the same with the new report, said Samantha Harris, FIRE’s vice president of policy research.

“Our hope in doing this is that we can sort of kick off similar clear and specific guidelines for what schools are missing and open a dialogue,” Harris said.

She said that FIRE has not developed concrete plans to write to specific institutions, but that it hopes to do so.

FIRE developed the 10 criteria by which it rated the institutions, which could score up to 20 points. It would assign two points if it felt the standard was met, one point if it considered the policy language vague, or none if it was absent. FIRE examined 102 different policies, both the ones relating to sexual misconduct and the procedures for nonacademic cases.

More than 80 percent of the institutions received a D or an F grade from FIRE on at least one of their policies. Lehigh University and Washington University in St. Louis, both private institutions, scored the lowest for their sexual misconduct policies, with one point and no points, respectively. None achieved an A -- designated by FIRE as at least 17 points on the 20-point scale.

Lehigh University provided a statement: “FIRE’s assessment of Lehigh’s policies and procedures is factually inaccurate and misleading.” Washington University in St. Louis did not provide comment before publication.

Harris said FIRE based its ratings off the policies that were publicly available, meaning even if a college was following its suggestions but did not state it explicitly, it still wouldn’t earn the points.

“If something is not guaranteed in writing, it exists at the whim of the administration,” Harris said.

Verbatim, FIRE’s criteria are as follows:

  • A clearly stated presumption of innocence, including a statement that a person’s silence shall not be held against them.
  • Adequate written notice of the allegations. Adequate notice should include the time and place of alleged policy violations, a specific statement of which policies were allegedly violated and by what actions, and a list of people allegedly involved in and affected by those actions.
  • Adequate time to prepare for all phases of the disciplinary process, including notice of the hearing date at least seven business days in advance, and access to all evidence to be considered at the hearing five business days in advance. If the accused student is required to respond to the allegations before the hearing, he or she must receive notice at least five business days in advance.
  • A prohibition on conflicts of interest that could compromise the integrity of the process (i.e., advocates cannot serve as investigators or fact-finders, and fact-finders must not hear the appeal).
  • The right to impartial fact-finders, including the right to challenge fact-finders’ impartiality.
  • Access to and the right to present all relevant inculpatory and exculpatory evidence at hearing.
  • The ability to pose relevant questions to witnesses, including the complainant, in real time, and respond to another party’s version of events. If questions are relayed through a panel or chairperson, there must be clear guidelines setting forth when questions will be rejected, and the reason for refusing to pose any rejected question should be documented.
  • The active participation of an adviser of choice, including an attorney (at the student’s sole discretion), during the investigation and at all proceedings, formal or informal.
  • The meaningful right of the accused to appeal a finding or sanction. Grounds for appeal must include (1) new information, (2) procedural errors, and (3) findings not supported by the record. Appeals must not be decided by the investigator or original fact-finding panel.
  • Unanimity of panel must be required for expulsion.

Few universities required that a panel universally agree for a student to be expelled -- despite this, Harris said this was particularly important for sexual misconduct cases considering the standard of evidence by which institutions judge them.

Issues of burden of proof have been a major point of contention since the Obama administration released a Dear Colleague letter in 2011 that clarified how institutions should interpret the federal law against gender discrimination, Title IX of the Education Amendments of 1972.

This guidance asked colleges to rely on the “preponderance of evidence” standard, meaning there’s enough proof to show an incident more likely occurred than not, versus a higher standard, “clear and convincing.”

FIRE has sued over the 2011 Dear Colleague letter, its objections largely centered around how the guidance was pushed out without the normal rounds of public input -- but it also disagrees with the standard of evidence, Harris said, though that was not focused on in the report.

“Particularly with the preponderance of evidence standard, if more than half of the people think more likely than not you did something, you’re expelled. That’s a low threshold,” Harris said.

Laura Dunn, a lawyer and executive director of SurvJustice, a survivor legal advocacy group, wrote in an email that she agreed with institutions adopting a requirement of unanimity for expulsion.

But she noted that some of FIRE’s criteria already are mandated by the Clery Act -- formally the Jeanne Clery Disclosure of Campus Security Policy and Campus Crime Statistics Act -- specifically students’ rights to “impartial fact-finders” and safeguarding against conflicts of interest.

Dunn criticized other FIRE proposals, such as the “clearly stated presumption of innocence.”

“A presumption of innocence advantages the accused only, and Title IX requires equity,” Dunn said via email. “No presumption should be made either way, and schools should engage in an inquisitorial process to determine the truth rather than artificially favor the accused going into it.”

Dunn also wrote that she “100 percent” disagreed with a student’s right to have an attorney actively participate in proceedings. 

“This is not court,” she wrote. “This is a campus process and there is no due process right to assistance of counsel, but there is a federal right to have an adviser of choice and that is more than sufficient -- we know since we do this every day and feel completely capable of successfully assisting our clients.”

Often, advocates of due process -- a legal term that has been incorrectly associated with campus adjudication -- conflate the college’s processes with criminal proceedings, said S. Daniel Carter, a longtime campus security consultant and president of Safety Advisors for Educational Campuses LLC.

Carter said over all he supported many of FIRE’s measures, which he described as a good mix of “baseline” and “aspirational.” He was unsurprised that many institutions hadn’t adopted many of them, but said he was disappointed others ranked so low, because some are required by the Clery Act.

“The process does need improvement,” Carter said. “I don’t know of anyone who would fundamentally argue that there couldn’t be improvements to the process.”

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