Common Media Mistakes About FIRE’s Due Process Advocacy

In recent weeks, news outlets across the country have written about Secretary of Education Betsy DeVos and her family foundation’s donations to FIRE. In doing so, many outlets have mischaracterized FIRE’s work defending students’ due process rights—particularly in the realm of campus sexual assault, where the federal government has taken several significant steps to impede the ability of institutions to provide fair hearings and freedom of expression.

We have written on this topic before, but it is worth reiterating a few points.

Perhaps most importantly, our defense of accused students’ rights is not an attack on complainants’ rights, as some writers have suggested. To the contrary, we aim to ensure all students’ rights are protected. The procedural safeguards for which FIRE advocates—such as the right to cross-examine witnesses, active assistance of an attorney, and impartial fact-finders—help ensure that campus adjudicators reach accurate and reliable findings of fact. This goal serves the entire campus community and is appropriate in all cases, but it is especially paramount where the ramifications of either an erroneous guilty finding or an erroneous not guilty finding are particularly significant, such as with accusations of sexual assault or other violent offenses.

Accordingly, FIRE has opposed legislation that attempts to address the issue of campus sexual assault simply by making it easier to find accused students guilty, rather than by helping fact-finders reach accurate results. We have not opposed provisions that could “prevent campus sexual assault,” as some writers have claimed. FIRE’s concern is focused on how the parties are treated and campus justice is served after an assault is alleged to have occurred.

Because only the criminal justice system can remove perpetrators from the streets and not just from campuses, and because the court system has procedural safeguards in place to help fact-finders reach reliable findings, FIRE supports legislation that would strengthen law enforcement’s role in addressing campus sexual assault. Campus criminals are not immune from the criminal law. Even in advocating for greater involvement by law enforcement, however, we have emphasized that colleges and universities have an important role to play in responding to alleged sexual misconduct. For instance, we said this in discussing one bill under consideration:

FIRE agrees with the bill’s sponsors that punitive interim measures should be waived if a complainant does not report the accusation to law enforcement for investigation. Currently, when the police aren’t called, allegations of criminal misconduct are adjudicated by a patchwork campus system that has proven unable to fairly and competently adjudicate these accusations, frequently sacrificing the rights of the accuser, the accused, or both parties. FIRE does recommend, however, that non-punitive interim measures and accommodations be made available regardless of the student’s decision to report. While colleges have unsurprisingly proved incapable of competently determining the truth or falsity of felony allegations (they aren’t real courts, after all), they are well-equipped to secure counseling for alleged victims, provide academic and housing accommodations, secure necessary medical attention, and provide general guidance for students who navigate the criminal justice system.

Instead of focusing on these remedial measures, universities are attempting to handle cases of serious and sometimes violent crimes through their own disciplinary systems, which parallel but fall far short of the criminal justice system. This status quo benefits no one—not complainants, not respondents, and not the rest of the campus community.

Making matters worse is the fact that the Department of Education’s Office for Civil Rights (OCR), the federal agency that enforces Title IX and therefore directs institutions on how they should respond to sexual misconduct allegations, is promulgating new rules for schools without soliciting the input of interested parties, like victims’ rights groups, civil liberties organizations, students, parents, and college administrators. This not only works to the detriment of those interested parties; it also violates the Administrative Procedure Act.

That is why FIRE is sponsoring a lawsuit challenging OCR’s unlawful mandate that schools use the low “preponderance of the evidence” standard when adjudicating sexual misconduct cases. FIRE’s victory in the lawsuit would not raise the standard—it would simply restore colleges’ ability to use something different. As we’ve explained before, if successful, this challenge would help “protect the nation from a range of unlawfully imposed mandates by deterring future administrative overreach in the area of student and faculty rights.” Over the past five years, OCR has wielded its power to interfere with accused students receiving fair hearings. In the future, it may attempt to unlawfully interfere with complainants’ rights. This lawsuit aims to prevent both unjust results.

While FIRE focuses on due process rights, our work ultimately serves the interests of all students, not just those accused of wrongdoing. We believe that institutions can and must fulfill their legal and moral obligations under federal anti-discrimination law while still affording accused individuals fair hearings, and we oppose policies that sacrifice one student’s fundamental rights under the guise of protecting another’s.