REPORT: New Title IX regulations bolstered due process at colleges, but Lhamon nomination threatens progress

• Policies governing Title IX misconduct guarantee significantly more due process protections than policies outside these regulations.
• Presumption of innocence is guaranteed at 90% of top universities in Title IX misconduct proceedings, but only at 62% of institutions for proceedings not governed by the regulations.
• Lhamon’s confirmation would torpedo improvements for student due process rights.
• Tuesday’s Title IX guidance from the Department of Education is latest evidence that the Biden administration will not hesitate to undermine student due process.

PHILADELPHIA, July 21, 2021 — The due process rights of America’s college students are up for a vote this month as senators consider whether to return Catherine Lhamon to her post as the Department of Education’s assistant secretary for civil rights. A new report from the Foundation for Individual Rights in Education examines the gains realized since Title IX regulations went into effect last year — improvements that could vanish if Lhamon is confirmed.

“We were finally seeing student rights moving in the right direction, but Catherine Lhamon’s nomination just shows how threatened the progress we’ve made is,” said FIRE Executive Director Robert Shibley. “If confirmed, Lhamon’s history and rhetoric indicate that she will put her thumb on the scale of justice — ripping away fundamental rights and encouraging a patently unfair shadow justice system that deprives students of their right to due process.”

“Spotlight on Due Process 2020-2021” 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’s research 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. 

Last May, the Department of Education released new regulations for how colleges must respond to alleged violations of Title IX, the 1972 law that prohibits sex discrimination in federally funded educational programs. The Title IX regulations, which apply to nearly every college and university in the country, public or private, carefully balance the rights of complainants and accused students alike. At 85% of schools included in the report, Title IX sexual misconduct policies scored noticeably higher than other policies, demonstrating the positive effect of the regulations on due process in Title IX cases. 

Not every accused student benefits from the regulations, however. Procedures governing non-Title IX misconduct, such as fighting, destruction of property, or sexual misconduct not covered under Title IX, still lack basic due process protections. Many institutions went from the already confusing and unfair status quo of having two disciplinary systems with different rules — one for sexual misconduct and one for all other misconduct — to having three such systems, simply adding another set of rules for sexual misconduct governed under the new Title IX regulations.

“Institutions are taking every opportunity to avoid providing due process across the board — even going so far as to create three separate disciplinary systems per campus to afford students as few protections as legally permissible,” said FIRE Program Officer Ryan Ansloan. “America’s top universities are offering rock-bottom due process protections. That’s why lawmakers and the courts must require a single, clear, and fair process for adjudicating campus misconduct once and for all.”

FIRE’s findings were troubling: Despite improvements, 44 of the 53 universities studied received a D or F grade for maintaining at least one system of policies that guaranteed no more than 4 of those 10 safeguards. This is a slight decrease from 49 institutions in FIRE’s previous report.

Other notable findings from the report include:

• Nearly two-thirds (62.2%) of America’s top 53 universities do not explicitly guarantee students that they will be presumed innocent until proven guilty. By contrast, more than 90% of rated universities’ Title IX policies include a presumption of innocence, which, contrary to Lhamon’s assertion during her recent Senate confirmation hearing, is explicitly required under the new regulations.
• Three out of every four schools (75.4%) do not provide timely and adequate notice of the allegations to students accused of wrongdoing before expecting them to answer questions about the allegations. By contrast, less than one-fifth of schools (18.9%) have a Title IX policy that fails to provide such notice. 
• Fewer than one out of every six schools (15%) guarantee a meaningful hearing, where each party may see and hear the evidence being presented to fact-finders by the opposing party, before a finding of responsibility. On the other hand, almost two-thirds of schools (64%) have a Title IX policy that guarantees a meaningful hearing. 

On Tuesday, the Department of Education issued new guidance to outline how the department will enforce Title IX in the coming months. The guidance is further evidence that the administration is focused not on protecting student rights, but on advising institutions how to provide as few due process protections for students as possible.

“This report is proof that institutions will go to absurd lengths to abridge their students’ rights,” said Ansloan, lead author of the report. “These ratings represent the fates of real students who face suspension or expulsion without a fair process. No student should have to face a confusing, unwieldy campus judicial system with the deck already stacked against a fair process.”

The Foundation for Individual Rights in Education (FIRE) is a nonpartisan, nonprofit organization dedicated to defending and sustaining the individual rights of students and faculty members at America’s colleges and universities. These rights include freedom of speech, freedom of association, due process, legal equality, religious liberty, and sanctity of conscience — the essential qualities of liberty.

CONTACT:

Katie Kortepeter, Media Relations Associate, FIRE: 215-717-3473; media@thefire.org