Never mind the ‘Spotlight on Due Process’ report, colleges are fine. [Citation needed.]

By  October 31, 2017

Yesterday, Brett Sokolow, founder, president, and CEO of the National Center for Higher Education Risk Managementoffered his rebuttal to arguments by FIRE and other due process advocates that adjudicating campus disciplinary cases using the low “preponderance of the evidence” standard does not sufficiently protect accused students against inaccurate guilty findings at the typical college or university.

Between April 4, 2011, and Sept. 22, 2017, the Department of Education’s Office for Civil Rights mandated this standard in sexual misconduct proceedings at colleges and universities governed by Title IX — almost all of them, public or private. Although this is the standard of proof used in most civil cases, including lawsuits for money damages over sexual assault, parties in civil and criminal courts are guaranteed a long list of procedural safeguards designed to ensure accurate results: the right to hire an attorney, the right to subpoena and cross-examine witnesses, the right to discovery, the right to written notice of the allegations, and many others. With the exception of a few safeguards codified into law in a few jurisdictions, these protections are not specifically guaranteed by law in campus proceedings. And, overwhelmingly, institutions themselves fail to guarantee them through their written disciplinary policies.

Sokolow concedes in his post that protections in campus proceedings are “not identical” to those in courts, but he maintains that “[t]hey are extensive.” He writes:

Sure, college resolution proceedings don’t have formal rules of evidence or the right to representation by attorneys, but campus processes are not without procedural rigor. Without being exhaustive:

  • Colleges offer the equivalent of informal discovery (a major procedural protection), by being transparent during the process about what investigators are learning, by sharing documents with the parties, and ultimately showing the report to the parties before it is finalized;
  • Colleges operate under a presumption of innocence (to the extent they operate under a presumption at all);
  • Colleges respect the right to remain silent and to avoid self-incrimination;
  • Colleges afford the right to be advised by an attorney (at least for the VAWA offenses, and should for all Title IX-covered behaviors, not to mention any separation-level offense);
  • Colleges respect key procedural rules, including requiring that evidence be relevant and credible, and that prior sexual history and character evidence is rarely admissible;
  • Colleges allow and seek expert evidence and testimony as needed;
  • Colleges allow questioning of the parties, if not cross-examination in its purest form.
  • Colleges assure sanctions that are proportionate to the severity of the misconduct;

Colleges almost always permit appeals.

Really? Because FIRE analyzed 103 disciplinary procedures at 53 top universities and concluded differently. Specifically, we looked for ten essential procedural safeguards, which substantially overlap with those listed by Sokolow. We found that some institutions guaranteed some of these safeguards. Most guaranteed only a few. Some guaranteed none.

None guaranteed all.

Even when it came to the most basic of these safeguards, schools failed; almost three quarters of the universities surveyed did not guarantee a presumption of innocence. In other words, a mere accusation could be enough to find a student guilty.

Unlike FIRE, Sokolow doesn’t provide any citations or links to policies to support his assertion that, generally speaking, colleges provide “extensive” procedural safeguards. Even setting stats aside, Sokolow has set the bar pretty low for what he considers to be sufficient protection for accused students. While declaring that colleges have various safeguards, he articulates many of them with a degree of flexibility that renders them toothless.

“Colleges offer the equivalent of informal discovery … by being transparent during the process about what investigators are learning, by sharing documents with the parties, and ultimately showing the report to the parties before it is finalized,” he writes. Even if this were true, the usefulness of “informal discovery” hinges on whether students are granted access to all evidence with sufficient time to actually craft their defenses around it. Sharing documents before a report is finalized hardly qualifies.

He continues: “Colleges afford the right to be advised by an attorney.” Students are sometimes afforded the right to be advised by an attorney, but almost always only as long as all the advising happens outside actual campus proceedings. Without the ability to actively participate in campus hearings, an attorney can’t provide nearly the same help that she can in civil proceedings, where she can directly help fact-finders arrive at the truth through shrewd questioning and protect her client against rights violations through objections. Of the 53 institutions FIRE surveyed for our report, only three allowed active participation of legal counsel in all non-academic cases.

“Colleges allow questioning of the parties, if not cross-examination in its purest form,” he writes. Yes, colleges “allow questioning of the parties” — by someone, very often one single investigator who isn’t required or even encouraged to ask the questions requested by the complainant or respondent. To call it “not cross-examination in its purest form” is a gross understatement.

Cross-examination is effective as a fact-finding tool because it allows the parties with the knowledge and motivation to find inconsistencies in the other party’s story to do so by asking questions and follow-up questions in real time, with the fact-finders and questioner observing the witness’s words, tone, and demeanor. An investigator questioning parties separately, sometimes over a period of weeks, cannot be as effective as cross-examination, whether conducted directly between parties or through a third party like a hearing chair. Of the 53 institutions FIRE surveyed for our report, 37 — almost 70% — did not provide students a meaningful opportunity to cross-examine witnesses in at least some non-academic cases.

FIRE’s concerns about the preponderance standard would be somewhat assuaged if colleges and universities consistently guaranteed a host of other procedural safeguards. But they do not.

Sokolow thinks universities should “do a better job of driving the dialogue about how much due process they DO afford.” FIRE thinks universities should first concentrate on implementing policies that are actually designed to reach fair and accurate results. Once they do, FIRE would be happy to publicly commend them on their progress.