• 3 in 4 top universities do not guarantee presumption of innocence in campus proceedings.
• 9 in 10 top universities do not guarantee meaningful cross-examination in cases of alleged sexual misconduct.
• None of the surveyed institutions guarantee all the due process protections required under the new, proposed Title IX regulations.
• Polling shows students overwhelmingly want due process protections, but universities fail to deliver.

PHILADELPHIA, Dec. 18, 2018 — America’s top universities fail to provide students accused of campus misconduct with fair procedures, according to a new report from the Foundation for Individual Rights in Education. As the Department of Education considers public comments on newly proposed regulations governing Title IX enforcement until Jan. 28, “Spotlight on Due Process 2018” highlights the need for change.

READ THE REPORT: SPOTLIGHT ON DUE PROCESS 2018 | AUDIO CLIPS FOR MEDIA USE

“Students accused of serious campus offenses routinely face life-altering punishment without a meaningful opportunity to defend themselves,” said FIRE’s Susan Kruth, lead author of the report. “Universities need to provide basic procedural protections that help ensure accurate outcomes, and right now they overwhelmingly do not.”

FIRE examined policies at the top 53 universities in the country to see how many of 10 fundamental procedural safeguards they guarantee students, including the presumption of innocence, the right to impartial fact-finders, and the right to appeal. Of the 53 universities studied, 47 receive a D or F grade, meaning that they guarantee no more than 4 of the 10 elements rated.

Most institutions maintain one set of policies for charges of sexual misconduct and another for all other non-academic misconduct, such as theft or physical assault. Notably, of the 15 institutions that received an F rating for their sexual misconduct policies, 11 have been sued by accused students over the lack of fair procedure.

Although universities do not guarantee their students fair disciplinary procedures, it’s clear students overwhelmingly want them. Each element in FIRE’s report is supported by a majority of college students surveyed by FIRE this year about their views on campus due process protections:

• 85 percent of students think their accused classmates should be presumed innocent until proven guilty, but only 26 percent of America’s top universities guarantee  students that protection.
• Although three-quarters of students support cross-examination, only 1 in 10 institutions guarantees students a meaningful opportunity to cross-examine witnesses.
• 8 in 10 students think students accused of breaking the law should be allowed to have a lawyer present in campus judicial proceedings, but only one institution out of 53 surveyed allows attorneys to participate without significant limitations.

This landscape may shift if the Department of Education’s proposed regulations are enacted. 87 percent of institutions receive a D or F for their failure to protect the due process rights of students accused of sexual misconduct, but implementing the proposed regulations would raise surveyed universities’ grades to a C or better.

“Of the 104 policies rated, not a single one receives an A grade. This shows just how far removed students have been from real justice in campus proceedings — and how much work is still left to do,” said Samantha Harris, FIRE vice president of procedural advocacy. “By adopting the ten elements of fair process laid out in FIRE’s report, universities can ensure that their judicial process protects the interests of everyone involved.”

“Spotlight on Due Process 2018” can be read in full on FIRE’s website. For more information about FIRE’s student survey, see “Proceeding Accordingly: What Students Think about Due Process on Campus.”

The Foundation for Individual Rights in Education (FIRE) is a nonpartisan, nonprofit organization dedicated to defending and sustaining the individual rights of students and faculty members at America’s colleges and universities. These rights include freedom of speech, freedom of association, due process, legal equality, religious liberty, and sanctity of conscience — the essential qualities of liberty.

‘Even more than I bargained for’When Lara Bazelon got a referral from a fellow attorney to assist an African-American student facing expulsion for the alleged sexual assault of a white woman, the law professor was skeptical.It was January, and Bazelon was heading up a new pro-bono law clinic focusing on “Racial Justice” at the University of San Francisco Law School. It was partnering with the San Francisco public defender’s office to assist minorities in legal trouble.

That referral ended up altering the focus of the law clinic. Up until that point, Bazelon had not been involved in any Title IX cases. But after discussing it with two female students, including one of color, Bazelon agreed to take the case.

Since then, Bazelon’s law clinic has taken numerous cases assisting low-income minority male students at California colleges who face expulsion over disciplinary charges. It’s still working with the public defender’s office on a wide range of cases as well.

The law clinic got on the national radar when Bazelon published an op-ed in The New York Times earlier this month that expressed support for Education Secretary Betsy DeVos’s* proposed Title IX reforms aimed at protecting due process.

Though Bazelon has argued in favor of due process for accused students before this, the op-ed provoked threatening voicemails and a lot of hate on Twitter, she told The College Fix in a phone interview.

“I expected some,” she said, “but some was even more than I bargained for,” adding the work was important, and “the fact that it is controversial is not going to dissuade me.”

“These are people of color with very limited means who face being permanently severed from their education,” she continued. “It is a population at risk.”

‘This is very important’ to majority-minority school

While Bazelon called DeVos’s proposed rules “far from perfect” in the op-ed, she said they would counter a “shameful legacy”: that America has “long over-sexualized, over-criminalized and disproportionately punished black men.”

She shared a case her clinic handled earlier this year, involving a first-generation black student on an athletic scholarship. He was accused of rape by “his teammate’s white ex-girlfriend” after she reconciled with her boyfriend, even though all agree their second sexual encounter was consensual.

The university judged him responsible for sexual assault because it found the woman more credible, even though her boyfriend also said she was lying.

“There is no hearing, no chance for the accused to ask her questions,” Bazelon wrote. “He’s one of a few black students on campus and worries he may get killed after word spreads.”

The law professor sees the mission of her clinic as essential to USF’s Jesuit mission, which centers on assisting the socially disadvantaged and poor.

She was “lucky” that Jesuit values were so important to the institution, Bazelon told The Fix. When she “explained the situation” to the law school dean, John Trasviña, he supported the clinic’s mission because he saw it as in line with the USF Jesuit mission. The Fix has not been able to reach Trasviña, who stepped down after the 2017-2018 academic year, to confirm the conversation.

Most of her students are women and people of color who see the importance of due process, according to Bazelon, noting her private university has a majority-minority law school. “This is very important to them,” she said. “As far as we know, we’re the only ones doing this.”

‘Very strong disagreements’ from respected peers

It’s been a harder sell outside her law school. Bazelon said she wrote a letter to the University of California system telling them that their “entire procedures are unconstitutional,” but never received a response.

Stanford Law Prof. Michele Dauber has also publicly criticized Bazelon’s diagnosis of what’s wrong in Title IX proceedings. Dauber led the successful campaign to recall a local judgeafter he issued a short jail sentence to a convicted rapist at Stanford, even though the judge followed sentencing guidelines.

MORE: Bazelon says false convictions would skyrocket if real courts mimicked campus

Citing recent California court decisions against UC-Santa Barbara and the University of Southern California, Bazelon said that defending due process “shouldn’t be a radical or controversial position.” Yet she has had several difficult conversations with people she respects who expressed “very strong disagreements” over her decisions to take these sexual misconduct cases.

The law professor called out the American Civil Liberties Union, which is supposed to be defending the rights of disadvantaged people, but “when it comes to these cases, they don’t.”

“We are standing up for the Constitution and making sure that these court decisions are being enforced,” she said.

Bazelon forwarded an interview request by The Fix to two of her students. One declined to talk and the other offered to answer questions via email but has not since responded.

he New Title IX Guidelines Benefit Survivors

 They prove the rights of both parties are not mutually exclusive, argues Meg Mott, and assume that survivors deserve to be treated as functional human beings.

 According to most news analyses, the U.S. Department of Education’s proposed rule changes for handling sexual misconduct and harassment on college campuses strengthen the rights of the accused at the expense of the victim. If respondents are able to hire lawyers to cross-examine witnesses, survivors will never be taken seriously.

But those headlines and lead paragraphs ignore the substantial powers the new rules grant to survivors. Not only do those rules prove that the rights of both parties are not mutually exclusive, but they also assume that survivors still deserve to be treated as functional human beings.

Under the Obama-era guidelines, students who had been sexually assaulted or sexually harassed were denied substantial decision-making processes. First, students had no choice in whether or not to report a case of nonconsensual sex or unwelcome sexual advances. Second, their judicial options were limited to a Title IX disciplinary panel. Third, the definition of sexual harassment privileged their fears over adult communication. All three elements of the old rules made it harder for survivors to heal.

Mandatory reporting. Under the “trauma-informed approach,” faculty and staff members were required to report any signs of prohibited sexual conduct to survivor advocates, whether or not the student wanted to complain. Any hesitancy or resistance on the part of the student was read as a symptom of trauma, not as a case of confusion or conflicting concerns. Victims, we were told during the annual training, don’t know what they need — which is for all employees of the college to act aggressively on their behalf.

By deputizing its entire work force as “responsible employees,” colleges were able to prove that they were taking sexual harassment and sexual misconduct seriously. But that policy required faculty members who taught sensitive material, such as feminist theory or literature, to alert their classes that any reference to an actual case of prohibited sexual behavior would need to be reported to the authorities. Once spoken, their private experiences were a matter of college business.

In contrast, the proposed changes require only one employee to coordinate and comply with the regulations, freeing faculty and staff members to provide support without triggering an investigation. This new rule will allow students to talk with others before deciding to initiate a complaint.

No alternative form of justice. The previous guidelines prohibited any informal alternative to a disciplinary panel, such as mediation. No survivor, it was assumed, could withstand the emotional distress of speaking with the accused.

Other countries, however, have granted survivors the option of restorative justice with no apparent damage. For instance, in Nova Scotia, female victims of online sexual harassment engaged in a series of restorative justice conferences. The women were students at a highly competitive dental school, and their harassers were fellow students who used a men-only Facebook page to make lewd comments about the women’s intelligence and looks. Rather than push for the dismissal of those accused through an administrative disciplinary panel, the survivors wanted to tell their peers how their sexist postings affected them and their studies. The women wanted the harassers to become better dentists and better human beings.

The proposed changes allow colleges and universities to experiment with alternative forms of justice, such as mediation or restorative justice conferences. As long as the parties understand the nature of the choice, more judicial options can be made available. That will allow harmed students to decide whether they want to take a greater or lesser role in applying any sanctions. For some harmed students, a restorative justice conference, in which they have a chance to speak directly to the harming student, offers more healing than a highly regulated proceeding in front of a panel.

No collective norms. Under the previous guidelines, sexual harassment was defined as “unwelcome conduct of a sexual nature.” The person who determined whether or not the conduct was unwelcome was the person allegedly being harassed. That person’s subjective response drove the whole investigation. As long as the complainant felt ill at ease, the Title IX panel should find for the aggrieved party.

But not being welcome hasn’t always been understood in purely subjective terms. Lawyers in workplace harassment cases, in contrast, read “unwelcome” as placing a burden on the aggrieved party to communicate their discomfort. Sometimes known as the “one free pass” rule, courts have understood that anything prior to an explicit rejection of sexual advances is potentially welcome.

On college campuses, however, cases are determined purely on the emotional distress of the complainant. If she (and majority of complainants still use that pronoun) feels demeaned, humiliated or scorned by the lascivious actions of another person, the encounter should be judged as harassment. Unfortunately, the subjective definition the Obama administration used has given an entire generation of college students a sense that painful feelings outrival communication. Students need not communicate their unease or discomfort to the offending party. All that is necessary is mentioning the encounter in passing to a “responsible employee” and the Title IX apparatus will jump into gear.

Under the recent proposed changes, sexual harassment is any “unwelcome conduct on the basis of sex that is so severe, pervasive and objectively offensive that it effectively denies a person equal access to [the college’s] education program or activity.” Under this definition, it won’t be enough merely to claim one’s discomfort. The action must be offensive enough that other people will also find it objectionable.

The benefit for survivors? This change in the definition will mean colleges will have to do a better job of clarifying collective norms. Instead of relying on individuals to police offensive encounters, the new guidelines will require campuses to adopt objective standards of decency, standards that will make it easier for aggrieved parties to voice their unease.

As it turns out, colleges with a strong moral compass are better able to address gender violence. As law professor Leigh Goodmark points out in her new book Decriminalizing Domestic Violence, Xavier University used the Jesuit concept of “cura personalis” — care for a person’s mind, body and spirit — to address gender-based violence. Xavier was able to “mobilize their culture” toward healthier community norms. Without those community norms, individuals are thrown back on their individual sensibilities.

So, yes, the new rules provide more protections for the accused, particularly the right to have a lawyer available to cross-examine witnesses. But they do even more for survivors. By treating survivors as capable decision makers and requiring communities to clarify social norms, students who have been harmed by the sexual advances of others will have a much greater chance of healing and getting on with their education.

Bio

Meg Mott teaches politics at Marlboro College and is currently working on a book on freedom, rights and intimate partner violence.