Imagine that you’ve been charged with a serious violation of a campus conduct code, maybe even something with potential criminal implications. You’re facing the end of your career before it even begins. What kind of process would you expect from your university before it imposed these life-altering consequences?
Would you expect to be presumed innocent? To have a hearing where you could question the witnesses against you? To be able to see the university’s evidence against you and present evidence of your innocence?
A survey just released by the Foundation for Individual Rights in Education (FIRE, where I work) found that students overwhelmingly think their peers should be afforded these and other procedural protections. But the reality is that the disciplinary procedures at most universities lack at least some of these critical safeguards. It’s time for that to change.
FIRE contracted with YouGov to survey 2,225 college students about their support for critical due process protections, including the right to be presumed innocent, the right to a hearing, the right to an adviser, and the right to see and present evidence.
The survey revealed that students overwhelmingly support robust due process protections in campus judicial proceedings. Although that support varied somewhat depending on the nature of the accusation (students received questions about someone accused of either underage drinking, sexual misconduct, or simply breaking a campus rule), support for these protections was strong across the board.
Looking at the overall sample, 85 percent of surveyed students think that students should be presumed innocent until proven guilty. Three-quarters of students support the right of students to cross-examine the witnesses against them. More than 70 percent of students responded that accused students should be able to have an adviser actively represent them in campus proceedings.
When students are accused of serious campus misconduct, however, they cannot count on receiving these protections. Last year, FIRE issued a report on campus due process based on our review of the conduct policies at America’s 53 top colleges and universities. We found that nearly three-quarters of those schools don’t guarantee that students will be presumed innocent until proven guilty. And while the Supreme Court has called cross-examination the “greatest legal engine ever invented for the discovery of truth,” two-thirds of the institutions we studied fail to consistently provide students a meaningful opportunity to cross-examine witnesses.
In the sexual misconduct context, a growing number of universities have dispensed with hearings altogether in favor of a “single-investigator” model, in which one person collects evidence, interviews parties and witnesses, and makes a determination of guilt or innocence. In addition to the conflicts of interest inherent in having one person effectively serving as prosecutor, judge, and jury, this model fails to provide accused students any meaningful opportunity to cross-examine their accuser or the witnesses against them.
In some of the many lawsuits challenging the adequacy and fairness of campus conduct proceedings, judges have expressed extreme skepticism about this single-investigator model. As one federal judge put it, “The dangers of combining in a single individual the power to investigate, prosecute, and convict, with little effective power of review, are obvious.”
FIRE’s new survey found that even in the sexual misconduct setting, where support for due process protections was generally lower than in other contexts, a majority of students oppose the use of the single-investigator model.
Yet its popularity continues to grow.
George Washington University, for example, recently dispensed with hearings in sexual misconduct cases in favor of a single-investigator process. Although the parties have an opportunity to comment on a preliminary version of the investigator’s report, there is no opportunity for the parties to ask questions of one another or of other witnesses. The parties may have an adviser present during the proceedings, but that adviser may not speak or in any other way actively participate; they are only there to provide “advice and support.”
Hundreds of colleges and universities have faced lawsuits over their treatment of accused students. Courts of law have provided some relief, but it’s time for this issue to be tried in the court of public opinion. We know that students want — and deserve — a fair process, and we know that universities are not providing it. As taxpayers and tuition payers, let’s tell our institutions of higher education that we demand better.
Samantha Harris is the vice president of policy research at the Foundation for Individual Rights in Education.
