By  June 27, 2017

Yesterday, The American Bar Association (ABA) Criminal Justice Section published a report and recommendations on how colleges and universities should handle allegations of sexual misconduct, addressing several serious shortcomings in campus disciplinary procedures across the country. While schools that implement the recommendations would be taking a valuable step toward ensuring students are not erroneously found responsible for sexual misconduct, the recommendations do not go as far as FIRE would like when it comes to guaranteeing safeguards for due process.

According to the ABA’s press release:

The final report was developed by a task force of lawyers consisting of current and former academics, school administrators, defense attorneys, prosecutors, government officials, victim advocacy representatives and other interested constituents. …

The findings of the task force were unanimously endorsed by the Criminal Justice Section Council, but are not formal ABA policy.

Among the positive elements of the recommendations is a focus on parties’ access to information and opportunities to rebut allegations. Pre-hearing safeguards are essential to a meaningful hearing. For example, the task force recommends that notice of charges should include, among other things, “the date of the alleged incident if known, a summary of the alleged facts, [and] a summary of the specific policy violation(s) under investigation by the school” — not simply a list of policies that the accused is alleged to have violated, as FIRE has seen before. Both parties should have the ability to review “any inculpatory or exculpatory information collected during the investigation” with an advisor before an investigation report is finalized. These provisions, if implemented at institutions, would leave students much better equipped to present their cases during the fact-finding stage of the adjudicatory process.

The recommendations borrow elements from (but do not mirror in full) Sixth Amendment confrontation rights and the Federal Rules of Evidence, aiming to provide students additional protection that they are not afforded at many colleges and universities. “[E]vidence may be presented during a hearing if it is relevant, not unduly repetitious, and the sort of information a reasonable person would find reliable,” and hearsay should be regarded with caution. Live testimony is preferred, and “the decision-maker(s) should not consider either party’s personal account of what happened unless that party is available for questioning by the decision-maker(s) and the other party.”

Also significant is the task force’s preference for an adjudicatory model over an investigatory model. With an adjudicatory model, “both parties are entitled to be present, evidence is presented, and the decision-maker(s) determine(s) whether a violation of school policy has occurred.” In the investigatory model, “the decision-maker(s) consider(s) only the investigation report in determining whether a violation occurred. Sometimes the investigator is also the decision-maker (the single investigator model) … .” In this model, “the parties are not entitled to be present for [others’] testimony … .”

Because the investigatory model — particularly a single-investigator model — is so vulnerable to the effects of an investigator’s fallibility or bias on the outcome of a case, the task force recommends that a higher standard of proof than the “preponderance of the evidence” be used with such models. Rather, the task force recommends that the fact-finder in an investigatory model be “firmly convince[d]” that the accused is responsible. In contrast, a fact-finding panel of three or more people in an adjudicatory model may find an accused student responsible “if the evidence unanimously convinces them to reasonably conclude that a finding of responsibility is justified.”

FIRE has been arguing continually since the Office for Civil Rights mandated the use of the preponderance standard in sexual misconduct cases in 2011 that this standard makes it all too easy for accused students to be erroneously found responsible. This is especially true at institutions that provide few or no other procedural safeguards. The task force’s suggestion that a single-investigator model utilizing the preponderance standard categorically does not adequately protect students against inaccurate guilty findings is a welcome reflection of FIRE’s longstanding views.

We do believe, however, that the recommendations should go further. For example, after working with FIRE, lawmakers in several states have guaranteed public university students the right to active assistance of counsel in non-academic campus disciplinary hearings. Attorneys who are allowed to actively participate in hearings are better able than students to present a case, help fact-finders arrive at the truth, and ensure the complainant’s and accused student’s rights are protected. While the task force recommends that each party have the right to an advisor, the advisor’s usefulness will be limited if they can’t speak for their client and openly object during proceedings.

Further, while we are glad to see the report acknowledge the risks inherent in the single-investigator model, FIRE believes that implementing an adjudicatory model better serves the fact-finding process than simply increasing the standard of proof.

Overall, the report and recommendations are a positive contribution to the important conversation about how colleges should handle allegations of sexual misconduct, but FIRE believes colleges and universities need to go further to ensure students accused of sexual misconduct receive a fair hearing and an adequate opportunity to defend themselves. The report contains additional information about bias and other factors that necessitate the recommended procedural safeguards, and is worth reading in full.