Follow-Up Thoughts on Yesterday’s Congressional Hearing

Yesterday, I testified before the House Committee on Education and the Workforce’s Subcommittee on Higher Education and Workforce Training on the topic of “Preventing and Responding to Sexual Assault on College Campuses.”

During my testimony, I emphasized three main themes. First, I argued that the status quo is failing both complainants and accused students alike. Second, I asserted that legislation addressing this issue must take all students’ needs into account, which requires including meaningful due process protections in any final bill. And third, I argued that the criminal justice system is better suited to adjudicating campus sexual assaults than campus hearings are.

A lot of the media coverage of the hearing so far has focused on a key exchange I had with Representative Jared Polis, in which he argued that the “preponderance of the evidence” standard—which requires only that fact-finders be 50.01 percent certain in order to find an accused student guilty—may be too high a threshold. Polis said:

It certainly seems reasonable that a school for its own purposes might want to use a preponderance of evidence standard, or even a lower standard. Perhaps a likelihood standard. … If I was running [a private college] I might say, well, you know, even if there’s a 20 or 30 percent chance that it happened, I wouldn’t want to—I’d want to remove this individual.

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It seems like we ought to provide more of a legal framework, then, that allows a reasonable likelihood standard or a preponderance of evidence standard. I mean if there’s 10 people that have been accused, and, you know, under a reasonable likelihood standard maybe one or two did it, it seems better to get rid of all 10 people. We’re not talking about depriving them of life or liberty, we’re talking about, they’re transferred to another university, for crying out loud.

I did not initially have an opportunity to respond to Polis’ argument that all accused students—even innocent students—should be expelled, or his assertion that due process concerns were unimportant because accused students were not being sentenced to jail in campus proceedings.

When I was given an opportunity to reply a few minutes later, I argued that the stakes are high for accused students; after all, being expelled for a sexual assault follows an individual for the rest of his or her life. Few schools admit transfer applicants who were expelled from another campus for sexual assault, and jobs that require security clearance or background checks will be all but impossible to obtain. It should go without saying that access to higher education is crucial in today’s modern world, and that no student’s access to an education should be cut short unjustly. That is in fact the very premise behind Title IX. If a school maintains a hostile environment that prevents students of one sex or gender from getting an education, that is a serious problem. It is no less serious when a student is prevented from getting an education because he or she was unfairly expelled. If yesterday’s hearing made one point clear, it is this: We cannot assume that everyone appreciates the high stakes for all involved. For another take on why Polis’ recommendation is problematic, check out Eugene Volokh’s analysis today for The Washington Post.

Representative Polis also articulated an argument FIRE hears frequently: that due process is important only when jail time is on the line. This argument is wrong. For decades, courts have held that matriculated students must not be deprived of their right to attend an educational institution without first being provided meaningful due process protections.

And let’s not forget that jail is a potential consequence of these hearings. A dean can’t sentence an accused student to 20 years in jail at the conclusion of a campus hearing, but the statements made by accused students in those campus proceedings may be used against him by a prosecutor down the line. Indeed, the chief of police and associate vice chancellor at the University of Wisconsin at Madison recently remarked that she was able to work around due process protections in the criminal justice system and obtain a conviction of a student in the subsequent criminal trial by using statements he made in campus proceedings while not represented by counsel or given his Miranda warning. As I said in the hearing, having students speak on the record about allegations of felony misconduct without proper legal representation may expose young people to criminal liability. To fix this problem, schools either must stop adjudicating these cases, or they must provide students the right to hire lawyers to actively represent them in the process.

With respect to Representative Polis’ assertion that colleges should be free to use a standard of evidence lower than the preponderance of the evidence standard, I must point out that this is a very bad idea in a number of ways. To begin with, as I stated in my testimony, there is very little chance that using any lower standard of evidence would meet the requirements of due process. Due process requires fairness, and it is plainly unfair to punish someone simply because they might be guilty. Moreover, using even the preponderance of the evidence standard to decide whether someone should receive a punishment that will likely follow him for the rest of his life is inappropriate, given that campus proceedings lack the procedural protections employed by the civil courts that use the preponderance of the evidence standard. It is also an inappropriate standard because, as my friends at Families Advocating Campus Equality (FACE) recently noted, those administering college tribunals are made up of “college employees [that] are also not subject to the same measures of public accountability of the criminal justice system”:

Judges, prosecutors, and members of the criminal justice system are accountable to professional boards, internal review processes, and in some cases, voters. College officials do not take professional oaths and are not subject to similar accountability measures, removing a key barrier for abuse of power.

If an out-of-control district attorney prosecutes your son or daughter, you can have some hope of getting him out of office. If your family’s “prosecutor” is a college bureaucrat popular with his or her fellow administrators, however, your options are far more limited. When deciding a case under the preponderance of the evidence standard, even a slight thumb on the scales of justice can affect the outcome—and there’s usually no consequence even when administrators put their thumbs all over the process.

After the hearing, a spokesperson for the Congressman explained, “[Polis] was making the point that our number one priority when it comes to sexual assault on campus should be ensuring we have the safest campus possible. … It’s disappointing that some are casually dismissing the basic premise that universities have the responsibility to go beyond criminal law in protecting students from sexual assault.” Of course, the tension between safety concerns (security) and due process concerns (liberty) are nothing new. Both must be taken into account. That’s why I told the committee that Congress should “give institutions the tools to protect their campuses on an interim basis while the wheels of justice turn.” Indeed, FIRE believes institutions should provide housing and academic accommodations. We also recommend that Congress give institutions the ability to temporarily suspend students while law enforcement professionals conduct their investigations, and the power to extend those suspensions while an indictment is pending. If an accusation turns out to be meritless, colleges should then do their best to restore the suspended student to his or her original position. This approach better fully accounts for the legitimate goal of campus safety and due process considerations.

In another key exchange of the hearing, Representative Hakeem Jeffries questioned me on whether the criminal justice system was also flawed. He challenged FIRE’s assertion that the criminal justice system is better suited to adjudicate campus sexual assault allegations, arguing that flaws in both systems are likely due to human error. While there is no doubt that the criminal justice system is also flawed, there are several reasons why it is still the better forum for deciding these challenging cases. First and foremost, courts have tools that campuses lack that are designed for fact-finding: rules of evidence, legally trained judges and lawyers, subpoena power, and sworn testimony, just to name a few. Moreover, an individual who suffers an injustice in criminal court has meaningful appellate rights and the writ of habeas corpus to help correct errors. The procedural mechanisms to respond to campus injustices are vastly inferior, when they exist at all. Finally, it is important to remember that even when the campus system is at its best, it still leaves predators on the streets if real law enforcement isn’t involved. In contrast, when the criminal justice system works properly, dangerous people are behind bars, not preying on new, innocent victims.

Lastly, I want to note that it was refreshing to hear public support for incorporating meaningful due process protections in any legislative solution from multiple members of the subcommittee, like Chairwoman Virginia Foxx, Ranking Member Ruben Hinojosa, and Representatives David Roe, Matt Salmon, and Luke Messer.

I was honored to be invited to share FIRE’s perspective. The hearing provided an important platform for discussing the key issues that must be assessed as Congress decides how to address the issue of campus sexual assault. We hope that the Subcommittee heeds our call that final legislation should address the needs of all students, and we look forward to working with Congress to help throughout the process.