‘To be sure, suffering a sexual assault is a serious and life-altering tragedy. But so, too, is being falsely found to have committed sexual assault…’
(Kaylee McGhee, Liberty Headlines) As the Department of Education considers changes to its Title IX policy, a new report reveals that the vast majority of public universities deny students accused of misconduct access to fair, balanced hearings.
The Foundation for Individual Rights in Education reported that at least three in four U.S. universities “do not guarantee presumption of innocence in campus proceedings.” As a result, many students accused of sexual misconduct are denied due process and the opportunity for cross-examination.
“Students accused of serious campus offenses routinely face life-altering punishment without a meaningful opportunity to defend themselves,” FIRE’s Susan Kruth, lead author of the report, said in a statement. “Universities need to provide basic procedural protections that help ensure accurate outcomes, and right now they overwhelmingly do not.”
The Trump administration plans to reform some of the rules the Obama administration imposed on universities in regards to how they must respond to complaints of sexual misconduct on their campuses.
Spearheaded by Education Secretary Betsy DeVos, these reforms will go “a long way toward establishing meaningful due process” on campuses, FIRE said.
Of the 53 universities FIRE evaluated, 47 received a “D or F grade,” meaning that they guarantee no more than four of the 10 procedural safeguards a student would receive in a regular court of law, including the presumption of innocence.
Notably, FIRE said that 11 of the 15 institutions that received an “F” for their sexual misconduct policies have been sued by accused students over the lack of fair procedure.
In an article for The Washington Post, lawyers Matt Kaiser and Justin Dillon said the Department of Education should do more to reform due process on campus.
“We agree that due process on campuses is in shambles,” they wrote. “But we don’t think the new reforms go far enough in ensuring that campus judicial hearings are fair to the accused.”
DeVos wants to change how evidence is gathered and presented during hearings on campus, but Kaiser and Dillon said this won’t change how that evidence is weighed—“which is the crux of much of what is unfair to those accused on campus.”
Ensuring that universities adopt the elements of fair process could change this, though.
“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,” Samantha Harris, FIRE vice president of procedural advocacy, said in a statement. “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.”
Conservatives aren’t the only ones calling for reform: In its report, FIRE found that 85 percent of students believe accused classmates should be presumed innocent until proven guilty, despite the fact that less than 26 percent of universities guarantee students that protection.
“To be sure, suffering a sexual assault is a serious and life-altering tragedy. But so, too, is being falsely found to have committed sexual assault,” Kaiser and Dillon wrote. “An appropriate system for resolving sexual assault will protect both those who have been assaulted and those who are wrongfully accused.”