Student Attitudes Due Process Survey

A 2018 survey conducted by FIRE and YouGov analyzed 2,225 college students’ attitudes toward due process and campus disciplinary proceedings on college campuses. The survey includes questions about procedural protections such as cross-examination and the participation of advisors, the purpose of campus disciplinary proceedings, and whether students feel campus disciplinary proceedings are fair to those involved. The results of the survey show that a majority of students on college campuses support due process protections for their peers in the cases of students breaking a campus rule, engaging in underage drinking, and engaging in sexual misconduct.

This publication was made possible through the support of a grant from the John Templeton Foundation. The opinions expressed in this publication are those of the authors and do not necessarily reflect the views of the John Templeton Foundation.

Executive Summary

In the fall of 2017, FIRE released its first Spotlight on Due Process report (the “2017 Report”), highlighting the startling lack of procedural protections for accused students in campus disciplinary proceedings. The authors of the 2017 Report found that nearly three-quarters of America’s top 53 universities do not presume accused students to be innocent until proven guilty, and that no school ensures that its students are protected by all ten of the fundamental elements of due process that FIRE outlined in the 2017 Report.[1]

This report builds on the 2017 Report. As discussed in the Methodology section, FIRE contracted with YouGov, a nonpartisan polling and research firm, to conduct a national online survey of 2,225 undergraduate students who currently attend a two- or four-year educational institution in the United States between January 29, 2018, and February 12, 2018. This report examines the findings of that survey.

The survey reveals that many college and university policies do not reflect student attitudes toward due process on campus. American students think their classmates deserve many of the procedural protections outlined by FIRE in the 2017 Report. In fact, in all but one situation described in the survey, a majority of student respondents supported the ten fundamental elements of due process highlighted in the 2017 Report (Table 1). Not only do the vast majority of students think their classmates should have due process rights, but they also feel that these rights are important: 98 percent of students think that it is very important or important that students have due process protections in college.

We drafted the survey to gauge students’ attitudes toward due process protections, and specifically used the procedural elements from the 2017 Report as a guide.[2] To keep our question wording simple and precise, we broke the concepts apart and asked student respondents sixteen questions about these ten fundamental elements of due process.

Additionally, we used a natural experiment to better understand how students think about due process in different situations. We treated one-third of our 2,225-student sample as a control group and asked them questions about their attitudes toward due process protections in a situation in which a college student allegedly “broke a rule.” We asked another third of our sample the same questions about an underage student who allegedly “drank alcohol.” We asked the final third of our sample the same questions, but this time about a student who allegedly engaged in “sexual misconduct.” This unique methodology allows us to show, throughout this report, that support for due process is strong, but that it is stronger for students who have allegedly broken a rule or engaged in underage drinking than it is for students who have allegedly engaged in sexual misconduct. We invite you to read the full methodology and questionnaire at the end of this report.

We at FIRE are encouraged that student support for due process protections is high overall, and we are excited to present the results from this groundbreaking survey of college students’ attitudes toward due process on campus. We hope this report will be used by students, faculty members, and college and university administrators to advocate for meaningful institutional change to campus disciplinary policies that are legally questionable and are not supported by student populations.

Some important findings from FIRE’s survey—the first survey to ever ask college students about due process protections on campus—include:

Ninety-eight percent of students think it is very important or important that students have campus due process protections in college.

Only 16 percent of students think that the primary purpose of a campus disciplinary hearing is to provide an educational experience for those involved, while 84 percent of students think that the primary purpose of a campus disciplinary hearing is to provide justice and protection to students on campus. This is in stark contrast to the argument made by many school administrators, who assert that campus disciplinary hearings serve primarily as an educational opportunity for those involved. [3]

As shown in Figure 1, students have mixed attitudes toward whether the jurisdiction of a college or university should extend to off-campus conduct: 18 percent of students think a college or university should be able to punish students for off-campus misconduct; 27 percent of students do not think a college or university should be able to punish students for off-campus misconduct; and 54 percent of students think it depends on the circumstances.

Sixty-three percent of student respondents in the sexual misconduct treatment group think that if a student is found not guilty of sexual misconduct, the complainant should be allowed to appeal the not-guilty decision to a higher campus decision-maker, allowing for a situation akin to double jeopardy.

Eighteen percent of the overall sample responded that they have participated in a campus disciplinary hearing or process (Table 5).

A majority of students who have participated in a campus disciplinary hearing or process (71 percent) think the campus disciplinary hearing or process was fair to everyone involved.

A majority of student respondents support nine of the ten fundamental elements of due process highlighted in the 2017 Report. As shown in Table 1, student support for an accused student being allowed to provide additional information or evidence at a disciplinary hearing received the highest proportion of support of any due process protection. Student support for making copies of all of the available evidence before a disciplinary hearing received the lowest proportion of support.

The one situation that did not receive a majority of support—when students in the sexual misconduct treatment group were asked about an accused student making copies of evidence—received 48 percent of student support.

Detailed Results

PRESUMPTION OF INNOCENCE

The principle that a person is innocent until proven guilty is a fundamental aspect of constitutional due process[4], including in on-campus disciplinary hearings at public colleges and universities.[5] Consistent with this, a majority of student respondents think that a student who is accused of breaking a campus rule (86 percent), engaging in underage drinking (87 percent), or engaging in sexual misconduct (80 percent) should be considered innocent by the school’s administration until the student is proven guilty (Figure 2).

When a student has allegedly broken a rule, student respondents who self-identified as very liberal are 9 percentage points more likely than their very conservative peers[6] to think the student should be considered innocent by the school’s administration until the student is proven guilty. However, when a student has allegedly engaged in sexual misconduct, the opposite is true: very liberal students are a full 19 percentage points less likely than their very conservative peers to think the student should be considered innocent by the school’s administration until proven guilty (Figure 3).

When a student has allegedly broken a rule, 85 percent of female students think the student should be considered innocent by the school’s administration until the student is proven guilty. Fewer (77 percent) female students think a student who has allegedly engaged in sexual misconduct should be considered innocent until proven guilty.

ADEQUATE NOTICE

Another core due process protection is providing the accused student with adequate notice of alleged misconduct.[7] Adequate notice is constitutionally required for public university students facing serious disciplinary action.[8] The 2017 Report emphasizes that adequate notice must be in writing and must include: “the time and place of alleged policy violations, a specific statement of which policies were allegedly violated and by what actions, and a list of people allegedly involved in and affected by those actions.”

Just as a student must be told the details of how he or she allegedly engaged in misconduct, the student must also be given adequate time to prepare for a campus disciplinary hearing. If a student is informed of the details of his or her alleged misconduct at the time of the hearing, that student has no time to prepare a meaningful defense. As stated in the 2017 Report, adequate time to prepare for the disciplinary process includes “notice of the hearing date at least seven business days in advance”; moreover, “if the accused student is required to respond to the allegations before the hearing, he or she must receive notice at least five business days in advance.”[9]

A majority of student respondents think a student who is accused of breaking a campus rule (90 percent), engaging in underage drinking (89 percent), or engaging in sexual misconduct (86 percent) should be given a written explanation of when and how the student allegedly broke the campus rule, engaged in underage drinking, or engaged in sexual misconduct, respectively (Figure 4).

Those respondents who stated that a student should receive a written explanation of when and how he or she allegedly broke a campus rule were then asked when the accused student should be given the written explanation. As shown in Table 2, a majority of those student respondents think that a student should receive a written explanation of alleged misconduct at least one week before a campus disciplinary hearing. Most of those students think that a student who is accused of breaking a campus rule (75 percent), engaging in underage drinking (71 percent), or engaging in sexual misconduct (65 percent) should be given a written explanation of when and how the student allegedly engaged in misconduct at least one week before the campus disciplinary hearing.

ACCESS TO EVIDENCE

To maximize the truth-finding ability of disciplinary proceedings, the parties must have the right to access evidence prior to the hearing and to present relevant evidence during the hearing. The Supreme Court of the United States has held that the right to be heard is a “fundamental requirement of due process.”[10] As a critical safeguard against the wrongful punishment of innocent students, American courts have protected this right for public university students facing suspension or expulsion.

A majority of students think that, before a disciplinary hearing, a student who is accused of breaking a campus rule (74 percent), engaging in underage drinking (76 percent), or engaging in sexual misconduct (61 percent) should be allowed to look through all of the evidence that might be used to show that the student broke a campus rule, drank alcohol, or engaged in sexual misconduct, respectively (Figure 5).

Fewer students, though still a majority, think that, before a disciplinary hearing, a student who is accused of breaking a campus rule (64 percent) or engaging in underage drinking (64 percent) should be allowed to make copies of all of the evidence that might be used to show that the student broke a campus rule or drank alcohol, respectively (Figure 6). However, less than half of students (48 percent) think that, before a disciplinary hearing, a student who is accused of engaging in sexual misconduct should be allowed to make copies of all of the evidence that might be used to show that the student engaged in sexual misconduct (Figure 6).

Of the ten due process protections that students were asked about in this survey, students expressed the least amount of support for allowing a student accused of misconduct to make copies of all of the evidence (Table 1).

There is no consistent ideological pattern to the responses to questions regarding access to evidence (Table 3). However, there is a strong ideological divide between liberal students and their conservative peers in regard to attitudes toward allowing an accused student to make copies of all of the evidence that might be used to show that the student engaged in sexual misconduct: fewer very liberal (41 percent) and liberal (42 percent) students think that a student accused of sexual misconduct should be able to make copies of all of the evidence that might be used to show that the student engaged in sexual misconduct than their conservative (60 percent) and very conservative (59 percent) peers.

As shown in Figure 7, fewer female students than male students think an accused student should be allowed to look through or make copies of all of the evidence that might be used to show that the student broke a rule, engaged in underage drinking, or engaged in sexual misconduct. If a student has been accused of sexual misconduct, female students are 20 percentage points less likely than male students to think the student should be allowed to make copies of all of the evidence. Similarly, in cases of alleged sexual misconduct, female students are 18 percentage points less likely than male students to think an accused student should be able to look through all of the evidence.

As shown in Table 1, of the ten fundamental due process protections that students were asked about in this survey, student support for an accused student being allowed to provide additional information or evidence regarding alleged misconduct received a higher proportion of support than any other protection. An overwhelming majority of students think that, before a disciplinary hearing, a student who is accused of breaking a campus rule (93 percent), engaging in underage drinking (91 percent), or engaging in sexual misconduct (88 percent) should be allowed to provide additional information or evidence at the hearing about whether the student broke a campus rule, drank alcohol, or engaged in sexual misconduct, respectively (Figure 8).

CROSS-EXAMINATION

The Supreme Court has called cross-examination the “greatest legal engine ever invented for the discovery of truth.”[12] It is crucial to ensuring fairness in college disciplinary proceedings, where evidence is often scarce and findings may turn entirely on the parties’ credibility.[13]

A majority of students think that a student who is accused of breaking a campus rule (79 percent), engaging in underage drinking (77 percent), or engaging in sexual misconduct (68 percent) should be allowed to ask questions of witnesses at a campus disciplinary hearing, either directly or indirectly through another person (Figure 9).

When respondents were asked about a student breaking a rule or engaging in underage drinking, support for cross-examination was relatively consistent, regardless of the students’ ideology. The lowest proportion of support for cross-examination is among very liberal students (74 percent) when asked about a student who was accused of drinking alcohol, and the highest proportion of support for it is among conservative students (83 percent) when asked about a student who was accused of drinking alcohol—a difference of 9 percentage points.

Again, however, a strong ideological divide emerges between liberal students and their conservative peers when the question involves a student accused of sexual misconduct. Fifty-eight percent of very liberal students and 83 percent of very conservative students think that a student who was accused of sexual misconduct should be allowed to cross-examine witnesses at a campus disciplinary hearing, either directly or indirectly through another person—a difference of 25 percentage points.

Support for cross-examination is relatively consistent among respondents in the three different treatment groups and respondents of different genders. The lowest proportion of support is among female students (64 percent) when asked about a student who allegedly engaged in sexual misconduct, and the highest proportion of support is among male students (81 percent) when asked about a student who allegedly broke a rule.

STUDENT ADVISORS AND LAWYERS

Another important procedural protection, as discussed in the 2017 Report, is “the active participation of [a student’s] advisor of choice, including an attorney … during the investigation and at all proceedings, formal or informal.”

Due to the adversarial nature and often severe consequences of campus disciplinary hearings,[14] FIRE argues that students should be allowed an advisor or advocate of their choice, including an attorney, to actively represent them. American jurisprudence recognizes that advocacy plays a critical role in establishing innocence or guilt.[15] To determine what degree of advocate participation the students would support, we asked them a series of four questions on this topic.

A majority of students think that a student who is accused of breaking a campus rule (88 percent), engaging in underage drinking (84 percent), or engaging in sexual misconduct (77 percent) should be allowed to have an advisor help to defend the student at the campus disciplinary hearing (Figure 10).

Student respondents who thought that an accused student should be allowed to have an advisor were then asked if they thought the advisor should be able to speak on behalf of the student during the campus disciplinary hearing. A majority of students think that a student who is accused of breaking a campus rule (77 percent), engaging in underage drinking (72 percent), or engaging in sexual misconduct (64 percent) should be allowed to have an advisor who is allowed to speak for the student during the campus disciplinary hearing (Figure 11).

A majority of students also think that a student who is accused of breaking a campus rule (72 percent), engaging in underage drinking (70 percent), or engaging in sexual misconduct (72 percent) should be allowed to have a lawyer serve as the student’s advisor (Figure 12).

Finally, all of the student respondents were asked if they thought a student accused of breaking a law should be allowed to have the assistance of a lawyer at a campus disciplinary hearing.[16] We asked this question to ensure that our student respondents—particularly those who were considering the scenario of breaking a campus rule—understood that such conduct might have legal implications outside of the campus disciplinary system.

A large majority of students (80 percent) think that a student who is accused of breaking a law should be allowed to have a lawyer help defend the student at the campus disciplinary hearing (Figure 13).

SINGLE-INVESTIGATOR MODEL

The single-investigator model is an investigatory model in which a college empowers a sole individual to collect evidence, conduct separate interviews with the parties and witnesses, and determine whether the accused student is responsible for the alleged wrongdoing.[17] The single-investigator model violates students’ due process rights by creating a conflict of interest detrimental to accused students as well as by denying students the opportunity to confront their accuser and the witnesses against them.[18]

A majority of students do not think that the same people who gathered evidence about whether a student broke a campus rule (61 percent), engaged in underage drinking (60 percent), or engaged in sexual misconduct (57 percent) should also judge whether that student is guilty of the alleged misconduct (Figure 14).

IMPARTIAL DECISION-MAKER

Decision-makers need to be impartial—an impartial disciplinary body is a core component of due process.[19] In order to ensure fundamental fairness, parties must be able to challenge the neutrality of the disciplinary body.[20] A majority of student respondents think that if a student accused of breaking a campus rule (80 percent), engaging in underage drinking (77 percent), or engaging in sexual misconduct (69 percent) feels that a member of the campus hearing panel is unfairly biased against the student, the student should be able to object to the participation of the hearing panel member (Figure 15).

APPEALS

A majority of student respondents think that if a student is found guilty of breaking a campus rule (68 percent), engaging in underage drinking (69 percent), or engaging in sexual misconduct (64 percent), the student should be allowed to appeal the guilty decision to a higher campus decision-maker (Figure 16). FIRE argues that an accused student’s right to appeal a finding or sanction is a core component of any fair system of adjudication.[21]

Forcing an exonerated student to face discipline or expulsion a second time constitutes a threat to fundamental fairness akin to that prohibited in criminal hearings by the Fifth Amendment’s bar against “double jeopardy.”[22] Nonetheless, a majority of student respondents think that if a student is found not guilty of sexual misconduct (63 percent), the person who made the sexual misconduct complaint should be allowed to appeal the not-guilty decision to a higher campus decision-maker (Figure 17).

More very liberal (75 percent) and liberal (74 percent) students think that if a student is found not guilty of sexual misconduct, the person who made the sexual misconduct complaint should be allowed to appeal the not-guilty decision to a higher campus decision-maker than do their conservative (61 percent) and very conservative (53 percent) peers.

UNANIMOUS DECISION TO EXPEL

Finally, FIRE argues that a decision to expel a student should be unanimous due to the severity of the penalty of expulsion and its effect on a student’s educational career.[23] A majority of students think that the decision to expel should be unanimous if a student broke a rule (84 percent), engaged in underage drinking (79 percent), or engaged in sexual misconduct (72 percent) (Figure 18).

Just as with cross-examination, when respondents were asked about a student breaking a rule or engaging in underage drinking, support for unanimous expulsion is relatively consistent regardless of the students’ ideology. The lowest proportion of support is among conservative students (76 percent) when asked about an underage student who allegedly drank alcohol, and the highest proportion of support is among moderate students (86 percent) when asked about a student who allegedly broke a campus rule—a 10 percentage point difference.

But, once again, when a student has been accused of sexual misconduct, there is a strong ideological divide between liberal students and their conservative peers with regard to attitudes toward requiring unanimity for expulsion. Fifty-seven percent of very liberal students and 79 percent of very conservative students think all of the decision-makers should have to agree that expulsion is the correct punishment if a student is found to be responsible for engaging in sexual misconduct—a difference of 22 percentage points.

Demographics

The statistics in this report were taken from an overall sample of 2,225 college students who were enrolled in two- or four-year educational institutions at the time they took the survey.

Residents of all 50 states and the District of Columbia were represented in survey responses.

Data from the overall sample represents the following breakdown of students:

Methodology

FIRE contracted with YouGov, a nonpartisan polling and research firm, to conduct a national online survey of 2,225 undergraduate students who currently attend a two- or four-year educational institution in the United States. Survey respondents were participants in YouGov’s online, opt-in research panel, consisting of about 1.8 million individuals.

YouGov used an online survey to interview 2,457 undergraduate students between January 29, 2018 and February 12, 2018. Respondents were offered incentives from YouGov in exchange for completing the survey. The final dataset was created by matching responses down to a sample of 2,225 observations based on a sampling frame constructed using the 2013 American Community Survey.

The survey included a natural experiment with three treatments:

Treatment One asked students about their attitudes toward due process protections in a situation in which a college student allegedly “broke a rule.”
Treatment Two asked students about their attitudes toward due process protections in a situation in which a college student allegedly “engaged in sexual misconduct.”
Treatment Three asked students about their attitudes toward due process protections in a situation in which an underage college student allegedly “drank alcohol.”

The questions for each treatment group are in the Survey Questionnaire section of this report.

The final dataset is an overall sample consisting of three treatment groups of the following sizes: 742 observations in the Treatment One group; 742 observations in the Treatment Two group; and 741 observations in the Treatment Three group. Each treatment group was created by matching responses based on a sampling frame constructed using the 2013 American Community Survey.[24]

After the matching process, YouGov calculated weights for each response based on the respondent’s gender, race, and age. After weights were calculated for each treatment group, a weight was calculated for the overall sample using the same method. All of the reported tabulations are weighted and may not total 100 percent due to rounding.

Tabulations from the overall sample have an estimated margin of error of +/– 2.2 at the 95% confidence level. Tabulations from treatment groups have an estimated margin of error of +/– 3.8 at the 95% confidence level. Tabulations taken from subgroups of the overall sample and treatment groups have a greater margin of error. The median amount of time it took a respondent to complete the survey was 8 minutes.

The aim at each stage of this survey project was to objectively understand the opinions and attitudes of college students.

Before publication, this report was externally reviewed by Angela C. Erickson to verify that the results are presented in a fair and honest way. Every effort has been taken to ensure the interpretations are accurate.

Survey Questionnaire

In this survey we are going to ask you a variety of questions about campus disciplinary hearings, and the process that students accused of misconduct go through at their college or university. There are no correct or incorrect answers to the following questions, and we thank you for your participation.

Q1: Have you ever participated in a campus disciplinary hearing or process, in any way?

Yes
No
I don’t know

Q2: Which role did you take when you participated in the campus disciplinary hearing or process? I was a… [Asked only of respondents who answered “yes” to Q1.]

Student accused of a conduct violation
Student advisor, defender, or advocate
Student accusing another student of a conduct violation
Student fact-finder or jury member
Student witness
Other [please specify]

Q3: In your opinion, was the campus disciplinary hearing or process fair to everyone involved? [Asked only of respondents who answered “yes” to Q1.]

Yes [please specify]
No [please specify]
I don’t know [please specify]

Q4: In your opinion, if a student is accused of breaking a campus rule, how should that student be allowed to defend himself/herself? [check all that apply] [The first three answer options were randomized.]

At a disciplinary hearing
At a meeting with administrators
Through a written statement
I don’t think there should be disciplinary hearings at colleges or universities [please specify]
Other [please specify]

Q5: In your opinion, should a college or university be able to punish students for misconduct that takes place off campus?

Yes
No
It depends
I don’t know

[One-third of the respondents were shown no additional instructions and answered questions about breaking a campus rule.]

[One-third of the respondents were shown the following instructions and answered questions about sexual misconduct:]

Next, we are going to ask you about a situation of sexual misconduct that might result in a disciplinary hearing on a college campus. Again, there are no correct or incorrect answers to the following questions, and we thank you for your participation.

Take a moment to read and think about the following situation: A college student has been accused of sexual misconduct by a classmate. The college’s administration informs the accused student that he/she needs to attend a campus hearing. If the student is found guilty of sexual misconduct at the hearing, he/she may be suspended or expelled from school. Please think about this situation while answering the following questions.

[One-third of the respondents were shown the following instructions and answered questions about underage drinking:]

Next, we are going to ask you about a situation of underage drinking that might result in a disciplinary hearing on a college campus. Again, there are no correct or incorrect answers to the following questions, and we thank you for your participation.

Take a moment to read and think about the following situation: A resident hall assistant at a college or university finds a group of students drinking beer in a dorm room and accuses one of the students of underage drinking. The college’s administration informs the accused student that he/she needs to attend a campus hearing. If the student is found guilty of underage drinking at the hearing, he/she may be suspended or expelled from school. Please think about this situation while answering the following questions.

[Respondents in the three different treatment groups were given questions corresponding to their group’s specific treatment scenario; each group’s questions contained the text of only one of the three options indicated in brackets.]

Q6: Should the student accused of [breaking a campus rule] [sexual misconduct] [underage drinking] be considered innocent by the school’s administration until he/she is proven guilty?

Yes
No
I don’t know

Q7: Should the student accused of [breaking a campus rule] [sexual misconduct] [underage drinking] be given a written explanation describing the details of when and how he/she allegedly broke a rule?

Yes
No
I don’t know

Q8: When should the student be given the written explanation? [Asked only of respondents who answered “yes” to Q7.]

At least one week before the hearing
Any time before the hearing
During the hearing
It doesn’t matter when
I don’t know

[The order of Q9 and Q10 were randomized.]

Q9: Before the disciplinary hearing, should the student be allowed to look through all of the evidence that might be used to show that the student [engaged in sexual misconduct] [drank alcohol] [broke a campus rule]?

Yes
No
I don’t know

Q10: Before the disciplinary hearing, should the student be allowed to make copies of all of the evidence that might be used to show that the student [engaged in sexual misconduct] [drank alcohol] [broke a campus rule]?

Yes
No
I don’t know

Q11: Should the student be allowed to provide additional information or evidence at the hearing about whether he/she [engaged in sexual misconduct] [drank alcohol] [broke a campus rule], in order to defend himself/herself?

Yes
No
I don’t know

Q12: Should the student be allowed to have an advisor help to defend himself/herself, including at the disciplinary hearing?

Yes
No
I don’t know

Q13: Should the student’s advisor be allowed to speak for the student during the hearing? [asked only of respondents who answered “yes” to Q12]

Yes
No
I don’t know

Q14: If an advisor may help the student, should a lawyer be allowed to serve as the student’s advisor?

Yes
No
I don’t know

Q15: Should the student be allowed to ask questions of witnesses at the hearing (either directly or indirectly through another person)?

Yes
No
I don’t know

Q16: Should the same people who gathered evidence about whether the student [engaged in sexual misconduct] [drank alcohol] [broke a campus rule] also judge whether that student is guilty?

Yes
No
I don’t know

Q17: If the student accused of [breaking a campus rule] [sexual misconduct] [underage drinking] feels that a member of the hearing panel is unfairly biased against him/her, should that student be allowed to object to the participation of the hearing panel member?

Yes
No
I don’t know

If the student is found not guilty of sexual misconduct, should the person who made the sexual misconduct complaint be allowed to appeal the not-guilty decision to a higher campus decision-maker? [asked only of respondents who answered sexual misconduct questions]

Yes
No
I don’t know

Q18: If the student is found guilty of [breaking a campus rule] [sexual misconduct] [underage drinking], should that student be allowed to appeal the guilty decision to a higher campus decision-maker?

Yes
No
I don’t know

Q19: The student is found guilty of [breaking a campus rule] [sexual misconduct] [underage drinking], and may be expelled from school. Before the student is expelled because of the guilty finding, should all of the decision-makers have to agree that expulsion is the correct punishment?

Yes
No
I don’t know

Q20: Should a student accused of breaking a law be allowed to have a lawyer help to defend himself/herself at a campus disciplinary hearing?

Yes
No
I don’t know

Q21: In your opinion, which of the following is the primary purpose of a campus disciplinary hearing? [Answer options were randomized.]

To provide an educational experience for those involved
To provide justice and protection to students on campus

Q22: The questions you just answered were about due process protections available to students involved in disciplinary processes at colleges and universities across America. In your opinion, how important is it that students have these types of due process protections in college?

Very important
Important
Unimportant
Very unimportant

[Respondents who answered questions about breaking a campus rule were shown no follow-up materials.]

[Respondents who answered questions about sexual misconduct were shown this follow-up material:]

Thank you for finishing the previous section of the survey. We have a few more questions for you, but if you or someone you care about has been affected by sexual misconduct, RAINN is an organization that can offer you help. RAINN is available on the web (https://www.rainn.org/) or by phone (1-800-656-4673).

The Rape, Abuse, and Incest National Network (RAINN) is the nation’s largest anti-sexual violence organization. RAINN carries out programs to prevent sexual violence, help survivors, and ensure that perpetrators are brought to justice.

[Respondents who answered questions about underage drinking were shown this follow-up material:]

Thank you for finishing the previous section of the survey. We have a few more questions for you, but if you or someone you care about has been affected by substance abuse, SAMHSA is an organization that can offer you help. SAMHSA is available on the web (https://www.samhsa.gov/find-help/national-helpline) or by phone (1-800-662-4357).

The Substance Abuse and Mental Health Services Administration (SAMHSA) is the agency within the U.S. Department of Health and Human Services that leads public health efforts to advance the behavioral health of the nation. SAMHSA’s mission is to reduce the impact of substance abuse and mental illness on America’s communities.

We’re almost done — the following questions will help us to get to know you better and make sure that our survey is representative and inclusive. Thanks so much for taking our survey!

Q23: Do you consider yourself to be:

Male
Female
Non-binary
Prefer to self-describe [please specify]

Q24: Do you consider yourself to be:

Heterosexual
Gay
Lesbian
Bisexual
Queer
Prefer to self-describe [please specify]

Q25: What is the name of the college or university that you attend?

Open-ended [please specify]

Q26: Is the college or university you attend a public or private school?

Public
Private
I don’t know

Q27: Is the college or university you attend affiliated with any religion or faith? [Asked only of respondents who answered “private” to Q26.]

Yes
No
I don’t know

Q28: What is your current class standing?

First year (Freshman)
Second year (Sophomore)
Third year (Junior)
Fourth year (Senior)
Fifth year (Senior or more)
Graduate or professional student
Other [please specify]

Q29: What is your major? [allow up to three responses]

Accounting
Administrative Science/Public Administration
Advertising
Agriculture/Horticulture
Anthropology
Architecture
Art History
Aviation/Aeronautics
Biology
Biostatistics
Business Administration
Chemistry
Child/Human/Family Development
Classics
Communications
Communicative Disorders
Computer Science
Criminology/Criminal Justice
Dance
Dentistry
Economics
Education
Educational Administration
Electronics
Engineering
English
Environmental Science/Ecology
Ethnic Studies
Finance
Fine Arts
Food Science/Nutrition/Culinary Arts
Foreign Language
Forestry
Gender/Women’s/LGBTQ Studies
General Studies/Interdisciplinary
Geography
Geology
Health
History
Human Resources
Human Services
Humanities
Industrial Science
Information Technology
Journalism
Law Enforcement
Liberal Arts
Library Science
Linguistics
Literature
Management
Marketing
Mathematics
Mechanics/Machine Trade
Medicine
Music
Nursing
Optometry
Parks and Recreation
Pharmacy
Philosophy
Physical Education
Physics
Political Science/International Relations
Pre-Law/Law
Psychology
Public Relations
Religion/Theology
Social Sciences
Social Work
Sociology
Special Education
Sports Science/Kinesiology
Statistics
Television/Film
Textiles
Theater Arts
Urban and Regional Planning
Veterinary Medicine
Visual Arts/Graphic Design/Design and Drafting
Writing
Undeclared
Other [please specify]

Q30: Have you taken a course about any of the following subjects in high school or college? [check all that apply] [Answer options were randomized.]

United States Government
Political Science
American History
Civil Rights and Liberties
Constitutional Law
None of the above
I don’t know

Q31: Do you live on or off campus?

On
Off
I don’t know

Q32: Did either of your parents attend college?

One of my parents attended college
Both of my parents attended college
Neither parent attended college
I don’t know

Q33: Have you received a Pell Grant as part of your college financial aid package?

Yes
No
I don’t know

Appendix: Procedural Safeguards from FIRE’s 2017 Spotlight on Due Process Report

A clearly stated presumption of innocence, including a statement that a person’s silence shall not be held against them.
Adequate written notice of the allegations. Adequate notice should include the time and place of alleged policy violations, a specific statement of which policies were allegedly violated and by what actions, and a list of people allegedly involved in and affected by those actions.
Adequate time to prepare for all phases of the disciplinary process, including notice of the hearing date at least seven business days in advance, and access to all evidence to be considered at the hearing five business days in advance. If the accused student is required to respond to the allegations before the hearing, he or she must receive notice at least five business days in advance.
A prohibition on conflicts of interest that could compromise the integrity of the process (i.e., advocates cannot serve as investigators or fact-finders, and fact-finders must not hear the appeal).
The right to impartial fact-finders, including the right to challenge fact-finders’ impartiality.
Access to and the right to present all relevant inculpatory and exculpatory evidence at hearing.
The ability to pose relevant questions to witnesses, including the complainant, in real time, and respond to another party’s version of events. If questions are relayed through a panel or chairperson, there must be clear guidelines setting forth when questions will be rejected, and the reason for refusing to pose any rejected question should be documented.
The active participation of an advisor of choice, including an attorney (at the student’s sole discretion), during the investigation and at all proceedings, formal or informal.
The meaningful right of the accused to appeal a finding or sanction. Grounds for appeal must include (1) new information, (2) procedural errors, and (3) findings not supported by the record. Appeals must not be decided by the investigator or original fact-finding panel.
Unanimity of panel must be required for expulsion.[25]

Footnotes

[1] FIRE, Spotlight on Due Process 2017, September 2017, https://www.thefire.org/due-process-report-2017.

[2] The procedural safeguards outlined in the 2017 Report are also listed in the Appendix of this report.

[3] For example: (1) Emory University’s Undergraduate Code of Conduct asserts, “Because the university is an institution of learning, the Code has education as its foremost aim; it is not intended to be a solely punitive process nor a substitute for the law” (http://conduct.emory.edu/policies/code_of_conduct/index.html); (2) Massachusetts Institute of Technology’s Committee on Discipline states, “With this context, the Committee on Discipline (COD) was created to resolve complaints of alleged violations of policies and/or community standards by a student, former student, or student organization in a way that is objective and educational, not legalistic or adversarial” (https://cod.mit.edu/); (3) Rensselaer Polytechnic Institute’s Student Rights, Responsibilities, and Judicial Affairs provides, “Rensselaer’s approach to the judicial process is one that is intended to be educational rather than punitive” (https://info.rpi.edu/dean-students/student-rights-responsibilities-and-judicial-affairs)

[4] Cool v. United States, 409 U.S. 100, 104 (1972) (finding that the presumption of innocence is “constitutionally rooted”); In re Winship, 397 U.S. 358, 361 (1970) (holding that the pprosecution must prove every element of the crime for the court to find guilt); Schaffer ex rel. Schaffer v. Weast, 546 U.S. 49, 56 (2005) (“[P]laintiffs bear the risk of failing to prove their claims”).

[5] See State v. Lynch, 178 Wash. 2d 487, 499, 309 P.3d 482 (2013) (finding that the overwhelming majority of courts have held that due process is violated when the defendant is required to prove any fact which negates an element of the offense charged); Mock v. Univ. of Tennessee at Chattanooga, No. 14-1687-II (Tenn. Ch. Ct. Aug. 10, 2015), available at http://www.chronicle.com/items/biz/pdf/memorandum-mock.pdf (holding that the university violated an accused student’s due process rights by improperly shifting the burden of the proof to him in a sexual misconduct proceeding).

[6] This report uses two scales in analyzing student answers based on political or ideological differences: one scale for partisan identification and one scale for ideological identification. Each scale is based on self-identification, was provided by YouGov, and allowed respondents to choose a “not sure” option. The five-point ideological scale includes the following identifiers: very liberal, liberal, moderate, conservative, and very conservative. The three-point partisan scale includes the following identifiers: Democrat, Republican, and Independent.

[7] Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950) (holding that notice is “[a]n elementary and fundamental requirement of due process”).

[8] Goss v. Lopez, 419 U.S. 565, 579 (1975) (stating that oral or written notice is required for students facing suspension).

[9] FIRE, Spotlight on Due Process 2017, September 2017, https://www.thefire.org/due-process-report-2017.

[10] Mathews v. Eldridge, 424 U.S. 319, 333 (1976) (“The right to be heard before being condemned to suffer grievous loss of any kind, even though it may not involve the stigma and hardships of a criminal conviction, is a principle basic to our society”) (internal quotations omitted).

[11] Goss, 419 U.S. at 581 (noting that a student facing suspension must be given “an opportunity to present his side of the story”); Dixon v. Alabama State Bd. of Educ., 294 F.2d 150, 159 (5th Cir. 1961) (stating that students have a right to present oral testimony or written affidavits of witnesses when facing expulsion).

[12] Lilly v. Virginia, 527 U.S. 116, 124 (1999).

[13] Maryland v. Craig, 497 U.S. 836, 846 (1990) (“[F]ace-to-face confrontation enhances the accuracy of factfinding by reducing the risk that a witness will wrongfully implicate an innocent person.”); Davis v. Alaska, 415 U.S. 308, 316 (1974) (“Cross-examination is the principal means by which the believability of a witness and the truth of his testimony are tested”).

[14] Donohue v. Baker, 976 F. Supp. 136, 145 (N.D.N.Y. 1997) (“It is well settled that an expulsion from college is a stigmatizing event which implicates a student’s protected liberty interest”).

[15] Herring v. New York, 422 U.S. 853, 862 (1975) (“The very premise of our adversary system of criminal justice is that partisan advocacy on both sides of a case will best promote the ultimate objective that the guilty be convicted and the innocent go free.”).

[16] Out of the total sample of 2,225 student respondents, 1,835 respondents were asked the following question: “Should the student’s advisor be allowed to speak for the student during the hearing?”

[17] Will Creeley, ‘Single Investigator’ at UCLA Means Hearings Available Only on Appeal, FIRE (Jan. 13, 2016), https://www.thefire.org/single-investigator-at-ucla-means-hearings-available-only-on-appeal/ (describing the single-investigator model).

[18] Smith v. Denton, 320 Ark. 253, 261 (1995) (finding due process concerns when one college administrator served as the investigator, prosecutor, witness, and judge); Doe v. Brandeis Univ., Supp. 3d 561 (D. Mass. 2016) (“The dangers of combining in a single individual the power to investigate, prosecute, and convict, with little effective power of review, are obvious. No matter how well-intentioned, such a person may have preconceptions and biases, may make mistakes, and may reach premature conclusions”) (footnote omitted).

[19] Marshall v. Jerrico, Inc., 446 U.S. 238, 242 (1980) (“This requirement of neutrality in adjudicative proceedings . . . helps to guarantee that life, liberty, or property will not be taken on the basis of an erroneous or distorted conception of the facts or the law”); Nash v. Auburn Univ., 812 F.2d 655, 665 (11th Cir. 1987) (“An impartial decision-maker is an essential guarantee of due process”).

[20] See Marshall, 446 U.S. at 242 (impartiality “preserves both the appearance and reality of fairness . . . by ensuring that [each party] . . . may present his case with assurance that the arbiter is not predisposed to find against him”) (internal citations omitted).

[21] Silverglate, Harvey A. and Josh Gewolb, FIRE’s Guide to Due Process and Campus Justice (Philadelphia: Foundation for Individual Rights in Education, 2014), 141–42.

[22] See Ashe v. Swenson, 397 U.S. 436, 445–46 (1970) (“For whatever else that constitutional guarantee may embrace, it surely protects a man who has been acquitted from having to ‘run the gauntlet’ a second time”) (internal citations omitted).

[23] See Donohue, 976 F. Supp. 136 at 145. See also Gonzales v. McEuen, 435 F. Supp. 460, 471 (C.D. Cal. 1977) (“There is no question that a high school student who is punished by expulsion might well suffer more injury than one convicted of a criminal offense”).

[24 United States Census Bureau, American Community Survey (ACS), http://www.census.gov/programs-surveys/acs/data/summary-file.2013.html.

[25] FIRE, Spotlight on Due Process 2017, September 2017, https://www.thefire.org/due-process-report-2017.

Table of Contents

Proceeding Accordingly: What Students Think about Due Process on Campus