REPORT: Campus due process protections improved under the 2020 Title IX regulations. New proposal could wipe away those gains.

• New Title IX regulations could torpedo improvements for student due process rights
• New FIRE report warns that if the government’s proposed regulations are enacted, even today’s shaky system might seem like the ‘good old days’
• ​​Not a single top college allows students accused of misconduct to have a lawyer present throughout hearing process
• Cornell, Georgia Tech shine while Notre Dame stands out as the worst school overall

PHILADELPHIA, Nov. 1, 2022 — Washington is playing ping-pong with students’ rights — and the political paddle is poised to smack the ball in the wrong direction.

The due process rights of America’s college students will be jeopardized if the Department of Education’s proposed Title IX regulations are implemented. A new report from the Foundation for Individual Rights and Expression examines the drastic implications of the proposed regulations and shows that too many institutions appear eager to offer as few due process protections as possible to students accused of campus misconduct.

“Bureaucrats are playing games with students’ rights — and justice is going to lose,” said report author and FIRE Senior Program Officer Ryan Ansloan. “Students accused of misconduct have little recourse on many campuses, facing kangaroo courts instead of fair hearings that respect their fundamental rights. And any proceeding that isn’t capable of fair hearings is not delivering justice to victims, either.”

Six in 10 of America’s top universities do not explicitly guarantee students that they will be presumed innocent until proven guilty.

FIRE’s “Spotlight on Campus Due Process 2022” report examines policies at 53 top national colleges to see how many of 10 fundamental procedural safeguards those institutions guarantee to students accused of violating college policy. FIRE grades institutions on providing basic protections such as the presumption of innocence, the right to impartial fact-finders, and the right to meaningfully cross-examine one’s accuser. 

In response to the rights-protective 2020 Title IX regulations, supported by FIRE, most schools carved out entirely new procedures to give students as few protections as legally possible, rather than incorporating the mandatory safeguards into their existing sexual misconduct policies. As a result, most of the colleges rated for this report maintain three separate and unwieldy systems:

• One for sexual misconduct that takes place under the college’s purview (covered by Title IX).
• One for sexual misconduct that the college believes it can punish but which did not take place in a context within its control (for example, between a student and a non-student while home on summer break).
• And one for all other non-academic offenses, such as theft, alcohol violations, and property destruction.

“How are students supposed to know their rights when their own colleges are bending over backwards to create cumbersome, bureaucratic nightmares that require a law degree to decipher?” asked Laura Beltz, who directs policy reform for FIRE. “Providing basic due process is the best and only way to reach a just result. If colleges were committed to finding the truth, they’d implement every one of the safeguards students are rightly owed.”

In June, the Department of Education proposed new Title IX regulations that, if implemented, would reverse 2020’s gains and gut essential free speech and due process rights. Since the 2020 regulations went into effect, the average score for sexual misconduct policies in FIRE’s annual report increased by 40%.

Under the new regulations, many campuses are likely to go back to the “single investigator” model, where a single bureaucrat will serve as prosecutor, judge, and jury for accused students. The new regulations would also do away with the requirement for colleges to provide students with a live hearing. Before the 2020 regulations, only 10 of 53 rated institutions guaranteed a meaningful hearing in their misconduct policies.

The findings in FIRE’s new report are troubling: 

• Six in 10 of America’s top universities do not explicitly guarantee students that they will be presumed innocent until proven guilty. (By contrast, nearly 95% of rated colleges’ Title IX policies include a presumption of innocence, as required by the 2020 regulations.)
• More than 70% of schools don’t provide timely and adequate notice of the allegations to students accused of wrongdoing before expecting them to answer questions about the incident.
• A dismal 44 of the 53 universities receive a grade of D or F from FIRE for at least one disciplinary policy, meaning they fully provide no more than 4 of the 10 elements that FIRE considers critical to a fair procedure. 
• For the first time, a single policy received an A grade. Cornell University’s policy on non-sexual misconduct provides more than 8 of the 10 elements that FIRE considers critical to a fair procedure. 
• Rarest safeguard: Not a single school allows students accused of sexual misconduct to have the active participation of an advisor throughout the process.

“Cornell’s policy should serve as a model for the rest of the country,” said Ansloan. “Other colleges must step up to the plate and commit to providing basic due process to their students, regardless of whether the new regulations ask them to do so.”

The Foundation for Individual Rights and Expression (FIRE) is a nonpartisan, nonprofit organization dedicated to defending and sustaining the individual rights of all Americans to free speech and free thought — the most essential qualities of liberty. FIRE recognizes that colleges and universities play a vital role in preserving free thought within a free society. To this end, we place a special emphasis on defending the individual rights of students and faculty members on our nation’s campuses, including freedom of speech, freedom of association, due process, legal equality, religious liberty, and sanctity of conscience.

CONTACT:

Katie Kortepeter, Communications Campaign Manager, FIRE: 215-717-3473; media@thefire.org