Colleges and universities across the country somewhat improved due process protections for Title IX investigations after the Department of Education under then-Secretary Betsy DeVos overhauled its regulations in 2020, a report found.
The “Spotlight on Campus Due Process 2022” report from the Foundation for Individual Rights and Expression found that the average due process score for how a school handled non-Title IX sexual misconduct increased from an average score of 5 out of 20 in the 2020 edition of the report to just shy of 8 out of 20, while the average score for Title IX cases was 13 out of 20.
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The report reviewed the university procedures for adjudicating violations of campus policies at 53 institutions, issuing separate ratings for each university’s policies for handling sexual misconduct under Title IX, sexual misconduct not covered under Title IX, and other violations of university policy.
Non-Title IX sexual misconduct cases include incidents in which a school punishes a student for sexual misconduct that occurs between the student and a nonstudent or that occurs while the student is away on summer break.
The standouts in the report included Cornell University and Georgia Tech, which FIRE praised for their robust due process protections, while Notre Dame, Boston University, and Boston College were singled out as among the worst institutions for due process. Overall, the report found that 60% of universities do not “explicitly” guarantee accused students will be presumed innocent. However, in Title IX cases specifically, that number rose to 95%.
“Providing basic due process is the best and only way to reach a just result,” FIRE Director of Policy Reform Laura Beltz said in a press release. “If colleges were committed to finding the truth, they’d implement every one of the safeguards students are rightly owed.”
FIRE was among the organizations that endorsed the Title IX regulations enacted by the Department of Education in 2020 under DeVos. But the organization’s new report comes as the Department of Education under President Joe Biden is working to repeal the 2020 regulation and implement new rules that make significant changes to the due process requirements in Title IX cases.
The DeVos rule required schools to move away from a single investigator model, conduct live hearings with cross-examination in Title IX cases, required accused people to be presumed innocent, and allowed each party to have an advocate throughout the hearing. The department’s proposed regulations would return to a single-investigator model and eliminate cross-examination except in regions of the country where it is required by a court.
The public comment period for the proposed regulation closed in September, and FIRE Senior Program Officer Ryan Ansloan, who wrote the new report, blasted the proposed rule, saying, “Bureaucrats are playing games with students’ rights — and justice is going to lose.”
“Students accused of misconduct have little recourse on many campuses, facing kangaroo courts instead of fair hearings that respect their fundamental rights,” Ansloan said. “And any proceeding that isn’t capable of fair hearings is not delivering justice to victims, either.”
DeVos told the Washington Examiner in a statement that while the FIRE report’s findings were “encouraging,” the pending regulations from the Biden administration dampened any sense of celebration.
“Make no mistake: their plan would eviscerate any shred of fairness and instead install a far left social engineering agenda,” DeVos said. “It’s absurd that anyone would advocate for taking away common-sense safeguards we put in place like access to evidence, a live hearing, and an impartial judge. It’s little wonder their proposal received a record-breaking number of public comments.”
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Bob Eitel, the president and co-founder of the Defense of Freedom Institute and a former Department of Education official under DeVos, praised the existing rule as “a groundbreaking leap forward” before blasting the Biden administration’s rule for disregarding due process.
“For [the Biden administration], Title IX is nothing but a tool to implement a radical, far left political agenda using America’s educational institutions,” Eitel said. “Should the Biden Title IX rule become final, it will lead to nothing but more litigation, more trauma, and more wrecked lives.”
