Due Process in the News: ‘Washington Post’ Highlights Accused Students’ Concerns

Yesterday’s issue of The Washington Post included a comprehensive and even-handed article about the due process concerns being raised by an increasing number of students accused of sexual assault within university judicial systems.

Among other things, the article illustrates that increased pressure on universities from the federal government to address sexual assault is leading universities to abandon due process in an effort to avoid government scrutiny.

A quote from an Auburn University administrator provides an example. The Post article discusses the case of Joshua Strange, who was expelled from Auburn after being accused of sexual misconduct by an ex-girlfriend. Although an Alabama grand jury declined even to indict him, he was found responsible under Auburn’s “preponderance of the evidence” standard of proof, which the federal government essentially mandated for universities in 2011. (As a note, grand juries indict under a standard even lower than preponderance—all they need is “probable cause,” a standard that the Supreme Court of the United States has found “does not demand any showing” that the allegation in question “be correct or more likely true than false.” Texas v. Brown, 460 U.S. 730, 742 (1983). What’s more, only the prosecutor is present to make the case, not the defense. In Strange’s case, the grand jury refused to indict even under these circumstances. That makes Auburn’s finding of guilt for Strange even more suspect.)

Talking to the Post,

Bobby Woodard, Auburn’s associate provost and vice president for student affairs, said federal requirements from the U.S. Department of Education mandate that all public universities follow a process that differs from the judicial and law enforcement systems in many ways.

“Those requirements are very clear and come with severe penalties for noncompliance,” Woodard said. “We at Auburn take these requirements very seriously, and that is reflected in our Code of Student Discipline.”

Unfortunately, in its efforts to address sexual assault on campus, the federal government has yet to acknowledge the importance of accused students’ due process rights. And if the Post’s article is any indication, this acknowledgment is unlikely to come any time soon. U.S. Senator Claire McCaskill, who is spearheading a bipartisan bill regulating universities’ handling of sexual assault claims, told the Post, “I don’t think we are anywhere near a tipping point where the people accused of this are somehow being treated unfairly.” Joshua Strange would likely disagree, as would the members of Families Advocating for Campus Equality (FACE), of which Strange’s mother is a part and which was also highlighted in the Post.

Given the high stakes for both accusers and the accused in campus sexual assault disciplinary hearings, it should be beyond question that neither student’s educational opportunities should be cut short unjustly. Just as it is morally wrong and unlawful for a college to sweep allegations of sexual assault under the carpet, it is also inexcusable both ethically and legally to expel an accused student after a hearing that provides inadequate procedural safeguards. As recent news reports have demonstrated all too well, both of these regrettable outcomes occur at campuses across the country with alarming frequency. FIRE hopes politicians recognize that both of these problems are worth addressing, and considers more balanced approaches to this issue.

If lawmakers won’t do that, the courts may ultimately require universities to provide the requisite due process. As the Post mentions, there are a number of lawsuits by accused students currently working their way through the courts. These suits generally allege both that the university breached its contract with students by failing to follow its own stated procedures, and that the university discriminated against them on the basis of sex in violation of Title IX. Such suits are currently pending against Amherst College, Columbia University, Duke University, and Swarthmore College, to name just a few.

FIRE was very pleased that the Post covered the issue of campus due process in such a balanced and informative manner, and we encourage Torch readers to read the article in full.

Learn more about the Foundation for Individual Rights in Education at The Washington Post.