Students sometimes ask why FIRE spends so much time making sure students accused of sexual misconduct receive fair hearings. They’ve noticed that over the past decade, a lot of our work has focused on the interplay between Title IX and due process. But things weren’t always this way. While FIRE has always been on the front lines of the battle to ensure students accused of misconduct are given a meaningful opportunity to defend themselves before they are punished, our biggest early due process case centered around a Facebook post about a parking garage — it had nothing to do with sexual misconduct at all. FIRE started focusing more on fundamental fairness in sexual misconduct disciplinary procedures about a decade ago, when colleges and universities, under the direction of the federal government, started throwing away procedural safeguards specifically in sexual misconduct cases and not in other cases.

This year, the Department of Education finally mandated that schools bound by Title IX (almost all colleges and universities nationwide) guarantee students accused of sexual misconduct under Title IX many critically important procedural safeguards to ensure they are not punished without due process. So what now?

FIRE’s goal was and is not that students accused of sexual misconduct be treated more fairly than students accused of other misconduct. Our goal is to ensure that all students facing serious punishment like long-term suspension or expulsion receive a meaningful opportunity to defend themselves, including the right to a presumption of innocence, information about the charges and the evidence against them with time to prepare before the hearing, and a live hearing with an opportunity to cross-examine witnesses. Federal regulations now require that students facing discipline under Title IX are afforded these protections. This is a solid advance for campus justice, but schools owe students an explanation if they’re not going to treat non-Title IX cases with the same care with which Title IX cases will be handled going forward.

As suggested by the Supreme Court of the United States in Goss v. Lopez, the formality of school disciplinary procedures required to achieve due process depends on what’s at stake. This factor — not whether alleged misconduct is sex-based — should be key in determining what kind of safeguards against unjust punishment a student is afforded. Case law in recent years has affirmed that where students’ educational careers may be derailed, robust safeguards like those now required by Title IX regulations are integral to a fundamentally fair process. And, of course, it would be just as reasonable to suspend or expel a student for creating a hostile environment based on race or for assaulting another student in a non-sexual context as it would be to suspend or expel them for sexual misconduct.

To help ensure all students facing serious punishments are guaranteed fundamentally fair hearings, FIRE has written a template letter students can send to their college or university asking it to provide students accused of non-Title IX misconduct the same safeguards students are entitled to receive under Title IX regulations. Whether schools choose to adopt FIRE’s Model Code of Student Conduct or simply make their new, regulations-compliant sexual misconduct procedures applicable in all cases where students face long-term suspension or expulsion, improving the process is an essential step towards protecting student rights.

As always, students, faculty, or administrators with questions shouldn’t hesitate to email us at dueprocess@thefire.org.

Here is our template letter:

Dear President [Name]:

As an institution bound by Title IX of the Education Amendments Act of 1972, [Institution] must abide by the Department of Education’s new Title IX regulations, which took effect August 14. The regulations require that schools like [Institution] guarantee students several important procedural safeguards in disciplinary proceedings prompted by allegations of sexual misconduct to ensure students have a meaningful opportunity to be heard.

Yet at present, [Institution] does not provide all of these safeguards in non-Title IX cases. I am writing to ask [Institution] to provide these safeguards to students in disciplinary proceedings for all cases where students face long-term suspension or expulsion. Where the stakes are high, the principles of due process and fundamental fairness require procedures tailored to help fact-finders arrive at accurate conclusions — whether the allegations are of sexual misconduct or non-sexual misconduct.

Among other elements, the Title IX regulations require schools to guarantee presumption of innocence, sufficient notice of charges, sufficient time with evidence to prepare for a hearing, impartial fact-finders, and live hearings with an opportunity to question witnesses. These safeguards help ensure that complaints of sexual misconduct will be taken seriously while all students accused of sexual misconduct are afforded a fundamentally fair process before being subjected to potential discipline. But just as allegations of sexual misconduct must be handled with care and integrity, so too should allegations of other types of serious misconduct.

To assist institutions with this goal, the Foundation for Individual Rights in Education has crafted a comprehensive “Model Code of Student Conduct.” FIRE’s Model Code includes definitions of key terms, an explanation of the institution’s jurisdiction, prohibited conduct, and disciplinary procedures that incorporate—into both sexual misconduct cases and non-sexual misconduct cases—the procedural safeguards mandated by the new Title IX regulations. The full Model Code is available on FIRE’s website at www.thefire.org/modelcode, and you can send questions to FIRE at dueprocess@thefire.org.

[Institution] can also better protect student rights simply by making its new, regulations-compliant sexual misconduct procedures applicable in all cases where students face long-term suspension or expulsion. Students should be granted the safeguards required by the new Title IX regulations not because the allegations relate to sexual misconduct, but because the potential sanctions can be life-changing. To deny students in serious non-sexual misconduct cases those same safeguards, therefore, is unjustifiable and unfair.

Incorporating the important protections listed above into our student conduct procedures for all cases where students face serious punishments would establish our institution as a leader in protecting the rights of all students and the integrity of our hearing processes. I hope to see [Institution] take this step to make all serious disciplinary proceedings fair.

Sincerely,

[Student]

Source: https://www.thefire.org/students-accused-of-non-title-ix-misconduct-should-get-fair-hearings-too/