REPORT: America’s top universities deny students fair hearings

By FIRE September 5, 2017

·         A new survey reveals that the overwhelming majority of America’s top universities fail to provide students accused of serious misconduct with the most basic elements of fair procedure

·         A shocking 85 percent of top institutions maintain policies that receive a D or F grade for due process protections

·         Nearly 74 percent of institutions don’t even presume a student innocent until proven guilty

PHILADELPHIA, Sept. 5, 2017 — Students accused of misconduct on campus are routinely required to defend themselves against serious accusations without even the most basic due process protections, according to a first-of-its-kind report from the Foundation for Individual Rights in Education.

“Spotlight on Due Process 2017” surveyed 53 of America’s top universities and found that a shocking 85 percent of schools receive a D or F grade for not ensuring due process rights. The schools were judged based on whether they guarantee those accused of campus misconduct 10 core elements of fair procedure, including adequate written notice of the allegations, the presumption of innocence, and the right to cross-examine all witnesses and accusers. FIRE awarded each institutional policy a grade based on how many of those elements it guaranteed.

“Most people will probably be surprised to learn that students are routinely expelled from college without so much as a hearing,” said Samantha Harris, FIRE’s vice president of policy research. “This report should be a huge red flag to students, parents, legislators, and the general public that an accused student’s academic and professional future often hinges on little more than the whim of college administrators.”

FIRE’s report found that 74 percent of top universities do not even guarantee accused students the right to be presumed innocent until proven guilty. Making matters still more unjust, fewer than half of schools reviewed (47 percent) require that fact-finders — the institution’s version of judge and/or jury — be impartial.

Additionally, 68 percent of institutions fail to consistently provide students a meaningful opportunity to cross-examine their accusers or the witnesses against them — despite the fact that the Supreme Court has called cross-examination the “greatest legal engine ever invented for the discovery of truth.”

Most universities try students under one set of procedures for sexual misconduct, and an entirely different set of procedures for all other offenses. Of the 49 institutions in the report that maintain separate policies for sexual and non-sexual misconduct, 57 percent grant students fewer procedural protections in sexual misconduct cases — even when those cases allege criminal behavior. Troublingly, 79 percent of top universities receive a D or F for failing to protect the due process rights of students accused of sexual misconduct.

Of the 102 policies at 53 institutions rated for this report, not one received an A grade. Only two institutions — Cornell University and the University of California, Berkeley — earned a B for protecting student due process rights in both sexual and non-sexual misconduct cases.

The significant risk of erroneous findings from disciplinary procedures that do not include procedural safeguards are compounded by an April 4, 2011 “Dear Colleague” letter from the Department of Education’s Office for Civil Rights. Among other things, that letter mandated that institutions use the low “preponderance of the evidence” standard when adjudicating sexual misconduct cases. At institutions that provided few procedural protections to begin with, this mandate left accused students vulnerable to guilty findings unsupported by reliable evidence and reached without following fair procedures.

“The decisions made by campus tribunals have serious and lasting consequences,” said Susan Kruth, senior program officer for legal and public advocacy at FIRE. “Colleges and universities must maintain policies designed to help fact-finders arrive at the truth. That way, institutions can discipline students who have been fairly adjudicated to be guilty without needlessly punishing innocent students.”

The Foundation for Individual Rights in Education (FIRE) is a nonpartisan, nonprofit organization dedicated to defending liberty, freedom of speech, due process, academic freedom, legal equality, and freedom of conscience on America’s college campuses.