Everyone is Innocent Until Proven Guilty, Except College Students

When it comes to defending themselves against accusations, college students are fighting an uphill battle. Today, students accused of misconduct are often subjected to long and invasive investigation processes without the right to legal representation, to question witnesses, or to be presumed innocent until proven guilty—all basic due process procedures to which every student should be entitled.

These abuses of due process have been fostered by the Title IX adjudication policies that came out of the Obama administration via the 2011 “Dear Colleague” letter. The letter provided rigid and authoritative “guidelines” that required colleges to employ a “preponderance of the evidence” standard when judging cases of sexual misconduct.

That standard meant students could be penalized, suspended, or expelled if it “is more likely than not that sexual harassment or violence occurred”—a far cry from the traditional “clear and convincing” or “beyond a reasonable doubt” standards employed in courts of law. Consequently, in order to appear compliant with the new guidelines, college and university officials were incentivized to implement shoddy investigation processes in order to find the accused guilty.

Fortunately, protecting due process may become easier since Betsy DeVos’ announcement that the Education Department will rescind the 2011 Dear Colleague letter. And on Friday, September 22, the Department of Education released interim guidance that allows colleges to use the “clear and convincing evidence” standard. This eliminates many of the perverse incentives universities had to find accused students guilty.

Still, even with the Education Department ending the requirements, universities may keep their Obama-era policies (some universities have explicitly confirmed their intention to do so).

That is unfortunate, since the current situation is egregious. To shed light on the lack of due process on college campuses, the Foundation for Individual Rights in Education (FIRE) released a report, entitled Spotlight on Due Process, analyzing the disciplinary policies of the top 53 universities in the country. The results were dismal.

In its evaluation, FIRE defined “ten fundamental elements of due process,” and graded each university according to how it met those standards. Among the criteria were the right to cross-examine witnesses and the right to be considered innocent until proven guilty.

Sadly, none of the universities’ adjudication policies received an “A” grade. Among its findings, FIRE reported that only 42 percent of universities require investigators or “fact-finders” to be impartial. Additionally, in the investigation of sexual misconduct cases, 79 percent of the universities met very few due process standards and received either a “D” or an “F” grade.

Even in North Carolina, which has enacted one of the strongest student due process laws in the country, the major universities fared poorly in the FIRE report. The University of North Carolina at Chapel Hill received a “D” for its handling of sexual misconduct cases; Duke University received a “C,” and Wake Forest University received an “F” grade.

North Carolina’s 2013 Students and Administration Equality (SAE) Act protects public university students’ right to legal counsel and requires universities to report the number and type of investigations it conducts. Yet Duke and Wake Forest, as private universities, are not subject to its protections. Even UNC-Chapel Hill is exempt from this law in non-sexual misconduct cases, because of its use of student courts. (It is the only one of the state’s public institutions that is exempt.) Consequently, students at Duke and Wake Forest (and, in some cases, at Chapel Hill) have no right to consult a lawyer if accused of an offense that could negatively impact their futures.

Moreover, Duke students recently received another blow to their due process rights. According to a new provision in the student conduct handbook, students who have already been exonerated of any wrongdoing can still be subjected to ongoing accusations and investigations. An article in The Herald Sun, the main Durham, NC newspaper, explains:

On its face, the wording sets up the theoretical possibility [that] a student could be accused of misconduct, be found responsible, appeal, win on appeal and then face a never-ending string of new hearings, new findings, and new appeals.

Many have argued that this sort of policy subjects students to an unfair “double jeopardy,” the absence of which has long been a cornerstone of our legal system.

Students at UNC-Chapel Hill don’t have to suffer such incessant scrutiny, yet there is plenty wrong with its adjudication policies. FIRE’s report notes that a UNC student accused of sexual misconduct is not considered innocent until proven guilty; is given little to no time to prepare for hearings; does not receive written notice of allegations; has no right to see or present all relevant evidence; and can be expelled without a unanimous vote from the disciplinary panel.

And even though not all North Carolina universities are included in FIRE’s report, individual cases suggest that other institutions have similarly unfair procedures. For example, in 2014, a student accused of sexual assault at Appalachian State University filed a lawsuit against the school and three of its administrators for denying him his due process rights.

That Appalachian student, Lanston Tanyi, claimed that the university only permitted him to have a graduate student as an advisor—while his accuser had formal legal representation. Tanyi’s grievances included the way that the university did not provide him with sufficient notice of the allegations against him and that he was not allowed to present witnesses to help prove his innocence. This and other cases illustrate the deficiencies in North Carolina universities’ adjudication policies.

Such incidents have become almost commonplace since the Dear Colleague letter was issued. At times, it almost seems as if the letter has permitted radical gender activists to unleash a sexual “Reign of Terror” on American campuses. For example, an entire fraternity at the University of Virginia was suspended after a 9,000-word Rolling Stone article falsely accused them of gang-raping a woman; the article has since been retracted, the journalist lost her position, and Rolling Stone has had to pay millions for lawsuits.

Furthermore, it has created an entire profession of sexual harassment administrators and activists. Andrea Pino, a UNC-Chapel Hill graduate who claims she was raped twice while in college, has made a career out of the “anti-rape” movement. Pino is co-author of the book We Believe You: Survivors of Campus Sexual Assault Speak Out—though some question the legitimacy of her story.

And many administrators were not forced to implement the Dear Colleague letter policies against their wills, as the sentiments expressed in the letter mirror their philosophies.

For instance, the president of Davidson College, Carol Quillen, openly rationalizes the abuse of due process. She suggests in the Charlotte Observer that unconditionally believing alleged victims and protecting the due process rights of the accused are of equal importance:

When a woman tells you she’s been assaulted, believe her. … Nothing about due process says to a rape survivor, ‘I believe you’. … How can we assure each survivor that we believe her while also insisting on an impartial investigative process?

Quillen overlooks the fact that there is an important difference between showing compassion to an alleged victim and unconditionally accepting an accuser’s claims. And she is hardly alone in academia. It is unfortunate that those who hold such influential positions in academia suggest that respecting one student’s rights may be in tension with showing empathy to another.

Despite the radical academic climate that rejects reasonable due process protections, there are steps that can be taken to prevent violations from happening in the future.

First, alumni, trustees, student groups, and legislators should pressure administrators to consult FIRE’s report in order to see where improvement is needed and then make policy changes accordingly.

Second, students can help protect civil liberties at their schools by participating in FIRE’s student network. As members of the network, students will have resources to educate themselves in current threats to their due process rights, and will be provided with the opportunity to advocate for those rights at their universities.

In North Carolina, it may be appropriate for the General Assembly to revisit House Bill 777, which was introduced last session. If passed, the bill would permit the cross-examination of witnesses and would require using the “clear and convincing” standard, rather than “preponderance of evidence” standard, when determining whether a student is culpable of sexual assault.

A willingness to compromise the fundamental rights of students should not be condoned. Now that Secretary DeVos has removed the worst mandates of the Dear Colleague letter, and now that FIRE has shed light on the extent of procedural abuses, state and university officials have the responsibility to rectify injurious policies and provide all students with “basic procedural protections.”

(Editor’s note: The Martin Center’s second annual policy banquet on October 11 will feature Robert Shibley of FIRE speaking on the topic of due process. You can learn more and purchase tickets here.)

  • dspwilson

    You neglect to point out the victims here are men, pretty much exclusively. The intent is exactly to unleash a sexual reign of terror on campuses, to punish men for being men.

    • Justice4all

      Well said, yes men are public enemy #1 on college campuses in large part due to the war on men declared by the Obama administration.

  • 48574

    Why is the right so unwilling to fight hard on these issues?

    The reason Obama got away with what he did was for two reasons:

    1) The people who run colleges agree with him so he did get less resistance.
    2) But here is the thing if you listen to those leaders the reason they gave for doing what they did was they couldn’t afford to lose the money they would lose if the Dept of Ed said they were violating the rules. Remember the colleges gave in what congress passed a law saying if you don’t allow military recruiters on campus you lose cold hard cash. Do the same here. Duke wants rules that don’t respect Due Process that is their choice. Their students can be ineligible for Pell Grants and Student loans that is congress’s choice.

  • Glen_S_McGhee_FHEAP

    The article is missing some important historio-legal context here: organizational ‘due process’ is a recent innovation. Without a description of its unfolding conceptualization and implementation along structural lines, and the resistance of institutional and other constraints, the picture is incomplete.

    The moral here is, don’t expect the goal to be reached while we are still in the middle of innovation diffusion. No one knows what it will look like 50 or 100 years from now.

    • 48574

      Since I can only see one page does this article speak about private employers or public employers?

      The distinction is important here. As this article points out Duke has more leeway then UNC because of the private vs public.

      A public school has always had a larger duty to give respect Due Process rights (in fact all Bill of Right- rights-free speech rights for example) as they are an extension of the government.

      I am not so sure if there is as much “innovation diffusion” in those cases as they simply have to obey the Bill of Rights.

      On the other hand even outside of colleges how you deal with employees including punish them by private companies/entities is changing to give employees more rights. But that is based on evolving laws and views about contracts and so forth.

      • Glen_S_McGhee_FHEAP

        To reinterate — numerous laws lie still-born on the books, right?

        In fact, it gets worse — for those laws (including public records laws) on the books, you have to find a judge willing to enforce them. Judges are especially reluctant to rule when there is no case history, regardless of what the state legislature says.

        All this, of course, is part of how judicial practices diffuse through the commonwealth. All else, to my mind, is arm chair speculation.

        Try this paper

      • Tom Sydnor

        The distinction between private and public is important only if you believe the Obama Administration’s OCR when it made the remarkable claim that Congress, (which is bound by the Due Process Clause), can constitutionally enact a statute, (Title IX), that OCR interpreted to impose investigatory and prosecutorial obligations upon private universities that choose to accept federal financial assistance that would — somehow — not be subject to the Due Process Clause. To be sure, private colleges and universities would not usually be subject to the Due Process Clause — unless, of course, they were executing duties imposed upon them by a federal Spending-Power-based statute that cannot be interpreted to permit any results that violate the Due Process Clause.

        Consequently, any investigatory or inquisitorial duties constitutionally imposed by Title IX upon private colleges and universities are necessarily subject to all constraints imposed by the Constitution’s Due Process Clause upon Congress, the President, and the Department of Education.

        Trust me. I graduated from the Duke University School of Law. Nothing that I have just said is reasonably debatable, even though the 2011 DCL claims otherwise. Congress cannot lawfully enact a stature that delegates to private parties any powers that Congress lacks. Congress lacjks power to enact statutes that impose investigatory, inquisatorial or adjudicatory duties that violate the Due Process Clause.

        I look forward to proving this point in more detail during the forthcoming notice-and-comment rulemaking Secretary Devos plans to initiate. –Tom

  • Glen_S_McGhee_FHEAP

    Thanks. I was skeptical about the ability of the Solomon Amendment to “navigate” across all the federal “grants” and funds, but it does just that, supposedly. Still, I doubt that it was actually used, due to the loudness of the saber-rattling by Congress that scared everyone away.

    10 U.S. Code § 983 – Institutions of higher education that prevent ROTC access or military recruiting on campus: denial of grants and contracts from Department of Defense, Department of Education, and certain other departments and agencies

    • 48574

      If that doesn’t work then send in the IRS to say failing to protect student’s Due Right Process fails the Common Law test of what it means to be a charity.

      The left in this case just plays rougher and goes for the cash when the find schools that do toe their ideological line. After all that was the basic threat Obama used in his letter to the schools. The Dept of Ed would declare them in violation that would cost the schools real money.

      By the way not defending Bob Jones U at all. I was unfortunately one of the few white parents years ago to stand with the black parents a the private Christian elementary school our kids attended that petitioned the board to find a different Christian publisher for the school curriculum.

      My point is I don’t think these people are going to change until it costs them. It is either going to be the various lawsuits that are happening so some kind of law change that links funds to protection for the accused. Until then we can rail against how the accused are treated but until it is linked to dollars the accused are going to be treated badly.

      I will get around to reading the linked article by the way.

  • Glen_S_McGhee_FHEAP

    See pages 76ff, and Fig 4-1 to see how complex this can be.

    Dobbin, F, L Edelman, J Meyer, WR Scott, and A Swidler. 1988.“The Expansion of Due Process in Organizations”. Pp. 71-100 in Institutional Patterns and Organizations: Culture and Environment, edited by Lynne G Zucker. Cambridge: Ballinger.

  • Justice4all

    Excellent article Shannon. Btw, are you aware that on October 7th in Charlotte there is a free conference being hosted by NCFM Carolinas that has a lineup of speakers that includes some of the best legal minds in the country who defend students accused of Title IX misconduct? Details can be found at http://www.ncfmcarolinas.com

  • The headline here is not accurate. An huge litany of similar witch hunts, false accusations, and flagrant denials of due process have long been perpetrated by the same sexual radicals using the same MO: accusations of “domestic violence,” “child abuse,” nonpayment of “child support”, and much more. The media and academic scholars continue to support the false accusations or simply look the other way, though most of these have consequences far more serious than campus “rape” accusations, including incarceration without trial. We should not be congratulating ourselves too quickly.

  • bdavi52

    How incredibly & unbelievably grotesque.

    We are told, by a college president no less: “When a woman tells you she’s been assaulted, believe her.”

    God, no!
    That may be what her parents do…that may be what her friends do…that may be what her lawyer does…. but official representatives of the College (let alone the Police), those charged with investigating the validity of the claim she makes…. NO, they cannot and absolutely should not “believe her”. That, in fact, is the very last thing they should do (if they ever do).

    As investigators, certainly, they can empathize. They can sympathize. They can deal with her gently, with courtesy….but they must not “believe her”. Instead they must question her. They must examine her. They must look for proof. They must track and analyze her statements for veracity, for witnesses, for objective indications that what she relates actually happened as she says it happened. And they must begin this process NOT with Belief (for belief by its nature destroys the process and invalidates the results) but with Doubt.

    But the insanity does not stop with the presidential assertion that we must all be True Believers. She goes on to tell us, in her abysmal ignorance, “Our criminal justice is founded on due process and the possibility of innocence.”

    No — it is not. It is founded upon the PRESUMPTION of innocence. And there is a vast and critical difference between a justice systems which grants the ‘possibility’ that you may be innocent, despite the accusation….and a justice system built on the bedrock belief that, in fact, you ARE innocent. But given President Quillen’s confusion, it is not surprising that she so fundamentally misunderstands the Justice System so completely. The fact that it has worked this way more or less since the 6th Century…. ei incumbit probatio qui dicit, non qui negat, proof lies on him who asserts, not on him who denies… evidently escapes her.

    In her ignorance, Quillen poses what she believes is essentially a rhetorical question / a philosophical puzzler: “And in this collision (between absolute Belief and the need for an impartial investigation), what is right?” But, of course, there is no collision because there is no Initial Belief to create the contradiction. Rather we begin with Doubt. And from that Doubt, in an effort to resolve that doubt, to clarify the confusion, to determine — objectively — what did and did not happen, the Investigation follows. That is what is right. It always has been.

    But when, like Quillen, you’re in the business of Culture Change (a significant part of which is evidently discarding the Constitution and Bill of Rights) little things like what is true, what is right, and what is ethical are easily discarded.