Report: As changes to Title IX enforcement loom, America’s top universities overwhelmingly fail to guarantee fair hearings for students

  • 3 in 4 top universities do not guarantee presumption of innocence in campus proceedings.
  • 9 in 10 top universities do not guarantee meaningful cross-examination in cases of alleged sexual misconduct.
  • None of the surveyed institutions guarantee all the due process protections required under the new, proposed Title IX regulations.
  • Polling shows students overwhelmingly want due process protections, but universities fail to deliver.

PHILADELPHIA, Dec. 18, 2018 — America’s top universities fail to provide students accused of campus misconduct with fair procedures, according to a new report from the Foundation for Individual Rights in Education. As the Department of Education considers public comments on newly proposed regulations governing Title IX enforcement until Jan. 28, “Spotlight on Due Process 2018” highlights the need for change.


“Students accused of serious campus offenses routinely face life-altering punishment without a meaningful opportunity to defend themselves,” said FIRE’s Susan Kruth, lead author of the report. “Universities need to provide basic procedural protections that help ensure accurate outcomes, and right now they overwhelmingly do not.”

FIRE examined policies at the top 53 universities in the country to see how many of 10 fundamental procedural safeguards they guarantee students, including the presumption of innocence, the right to impartial fact-finders, and the right to appeal. Of the 53 universities studied, 47 receive a D or F grade, meaning that they guarantee no more than 4 of the 10 elements rated.

Most institutions maintain one set of policies for charges of sexual misconduct and another for all other non-academic misconduct, such as theft or physical assault. Notably, of the 15 institutions that received an F rating for their sexual misconduct policies, 11 have been sued by accused students over the lack of fair procedure.

Although universities do not guarantee their students fair disciplinary procedures, it’s clear students overwhelmingly want them. Each element in FIRE’s report is supported by a majority of college students surveyed by FIRE this year about their views on campus due process protections:

  • 85 percent of students think their accused classmates should be presumed innocent until proven guilty, but only 26 percent of America’s top universities guarantee  students that protection.
  • Although three-quarters of students support cross-examination, only 1 in 10 institutions guarantees students a meaningful opportunity to cross-examine witnesses.
  • 8 in 10 students think students accused of breaking the law should be allowed to have a lawyer present in campus judicial proceedings, but only one institution out of 53 surveyed allows attorneys to participate without significant limitations.

This landscape may shift if the Department of Education’s proposed regulations are enacted. 87 percent of institutions receive a D or F for their failure to protect the due process rights of students accused of sexual misconduct, but implementing the proposed regulations would raise surveyed universities’ grades to a C or better.

“Of the 104 policies rated, not a single one receives an A grade. This shows just how far removed students have been from real justice in campus proceedings — and how much work is still left to do,” said Samantha Harris, FIRE vice president of procedural advocacy. “By adopting the ten elements of fair process laid out in FIRE’s report, universities can ensure that their judicial process protects the interests of everyone involved.”

Spotlight on Due Process 2018” can be read in full on FIRE’s website. For more information about FIRE’s student survey, see “Proceeding Accordingly: What Students Think about Due Process on Campus.”

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.


This professor started a legal clinic for black students accused of rape. She’s getting threats.

‘Even more than I bargained for’When Lara Bazelon got a referral from a fellow attorney to assist an African-American student facing expulsion for the alleged sexual assault of a white woman, the law professor was skeptical.It was January, and Bazelon was heading up a new pro-bono law clinic focusing on “Racial Justice” at the University of San Francisco Law School. It was partnering with the San Francisco public defender’s office to assist minorities in legal trouble.

That referral ended up altering the focus of the law clinic. Up until that point, Bazelon had not been involved in any Title IX cases. But after discussing it with two female students, including one of color, Bazelon agreed to take the case.

Since then, Bazelon’s law clinic has taken numerous cases assisting low-income minority male students at California colleges who face expulsion over disciplinary charges. It’s still working with the public defender’s office on a wide range of cases as well.

The law clinic got on the national radar when Bazelon published an op-ed in The New York Times earlier this month that expressed support for Education Secretary Betsy DeVos’s* proposed Title IX reforms aimed at protecting due process.

Though Bazelon has argued in favor of due process for accused students before this, the op-ed provoked threatening voicemails and a lot of hate on Twitter, she told The College Fix in a phone interview.

“I expected some,” she said, “but some was even more than I bargained for,” adding the work was important, and “the fact that it is controversial is not going to dissuade me.”

“These are people of color with very limited means who face being permanently severed from their education,” she continued. “It is a population at risk.”

‘This is very important’ to majority-minority school

While Bazelon called DeVos’s proposed rules “far from perfect” in the op-ed, she said they would counter a “shameful legacy”: that America has “long over-sexualized, over-criminalized and disproportionately punished black men.”

She shared a case her clinic handled earlier this year, involving a first-generation black student on an athletic scholarship. He was accused of rape by “his teammate’s white ex-girlfriend” after she reconciled with her boyfriend, even though all agree their second sexual encounter was consensual.

The university judged him responsible for sexual assault because it found the woman more credible, even though her boyfriend also said she was lying.

“There is no hearing, no chance for the accused to ask her questions,” Bazelon wrote. “He’s one of a few black students on campus and worries he may get killed after word spreads.”

The law professor sees the mission of her clinic as essential to USF’s Jesuit mission, which centers on assisting the socially disadvantaged and poor.

She was “lucky” that Jesuit values were so important to the institution, Bazelon told The Fix. When she “explained the situation” to the law school dean, John Trasviña, he supported the clinic’s mission because he saw it as in line with the USF Jesuit mission. The Fix has not been able to reach Trasviña, who stepped down after the 2017-2018 academic year, to confirm the conversation.

Most of her students are women and people of color who see the importance of due process, according to Bazelon, noting her private university has a majority-minority law school. “This is very important to them,” she said. “As far as we know, we’re the only ones doing this.”

‘Very strong disagreements’ from respected peers

It’s been a harder sell outside her law school. Bazelon said she wrote a letter to the University of California system telling them that their “entire procedures are unconstitutional,” but never received a response.

Stanford Law Prof. Michele Dauber has also publicly criticized Bazelon’s diagnosis of what’s wrong in Title IX proceedings. Dauber led the successful campaign to recall a local judgeafter he issued a short jail sentence to a convicted rapist at Stanford, even though the judge followed sentencing guidelines.

MOREBazelon says false convictions would skyrocket if real courts mimicked campus

Michele Dauber


Allowing each student to propound questions for the panel to ask is a reasonable system. The Trump Admin proposal for direct cross is a system guaranteed only to drop reporting through the floor. So in a way, it’s the perfect system to aligh the interests of colleges and rapists

Lara Bazelon@larabazelon

It isn’t direct x-exam. It’s thru an advisor. Why is that myth continuing to circulate? They don’t have to be in the same room and they are not allowed to talk to each other directly. Maybe posing questions to a panel to ask is better. That’s why we have n & c, to weigh in.

The law clinic’s cases serve as good learning opportunities because of the age proximity between the accused students and her own law students, Bazelon said. But her work has not always been greeted with support.

Citing recent California court decisions against UC-Santa Barbara and the University of Southern California, Bazelon said that defending due process “shouldn’t be a radical or controversial position.” Yet she has had several difficult conversations with people she respects who expressed “very strong disagreements” over her decisions to take these sexual misconduct cases.

The law professor called out the American Civil Liberties Union, which is supposed to be defending the rights of disadvantaged people, but “when it comes to these cases, they don’t.”

“We are standing up for the Constitution and making sure that these court decisions are being enforced,” she said.

Bazelon forwarded an interview request by The Fix to two of her students. One declined to talk and the other offered to answer questions via email but has not since responded.


The New Title IX Guidelines Benefit Survivors

he New Title IX Guidelines Benefit Survivors

 They prove the rights of both parties are not mutually exclusive, argues Meg Mott, and assume that survivors deserve to be treated as functional human beings.
By  Meg Mott  December 17, 2018
 According to most news analyses, the U.S. Department of Education’s proposed rule changes for handling sexual misconduct and harassment on college campuses strengthen the rights of the accused at the expense of the victim. If respondents are able to hire lawyers to cross-examine witnesses, survivors will never be taken seriously.

But those headlines and lead paragraphs ignore the substantial powers the new rules grant to survivors. Not only do those rules prove that the rights of both parties are not mutually exclusive, but they also assume that survivors still deserve to be treated as functional human beings.

Under the Obama-era guidelines, students who had been sexually assaulted or sexually harassed were denied substantial decision-making processes. First, students had no choice in whether or not to report a case of nonconsensual sex or unwelcome sexual advances. Second, their judicial options were limited to a Title IX disciplinary panel. Third, the definition of sexual harassment privileged their fears over adult communication. All three elements of the old rules made it harder for survivors to heal.

Mandatory reporting. Under the “trauma-informed approach,” faculty and staff members were required to report any signs of prohibited sexual conduct to survivor advocates, whether or not the student wanted to complain. Any hesitancy or resistance on the part of the student was read as a symptom of trauma, not as a case of confusion or conflicting concerns. Victims, we were told during the annual training, don’t know what they need — which is for all employees of the college to act aggressively on their behalf.

By deputizing its entire work force as “responsible employees,” colleges were able to prove that they were taking sexual harassment and sexual misconduct seriously. But that policy required faculty members who taught sensitive material, such as feminist theory or literature, to alert their classes that any reference to an actual case of prohibited sexual behavior would need to be reported to the authorities. Once spoken, their private experiences were a matter of college business.

In contrast, the proposed changes require only one employee to coordinate and comply with the regulations, freeing faculty and staff members to provide support without triggering an investigation. This new rule will allow students to talk with others before deciding to initiate a complaint.

No alternative form of justice. The previous guidelines prohibited any informal alternative to a disciplinary panel, such as mediation. No survivor, it was assumed, could withstand the emotional distress of speaking with the accused.

Other countries, however, have granted survivors the option of restorative justice with no apparent damage. For instance, in Nova Scotia, female victims of online sexual harassment engaged in a series of restorative justice conferences. The women were students at a highly competitive dental school, and their harassers were fellow students who used a men-only Facebook page to make lewd comments about the women’s intelligence and looks. Rather than push for the dismissal of those accused through an administrative disciplinary panel, the survivors wanted to tell their peers how their sexist postings affected them and their studies. The women wanted the harassers to become better dentists and better human beings.

The proposed changes allow colleges and universities to experiment with alternative forms of justice, such as mediation or restorative justice conferences. As long as the parties understand the nature of the choice, more judicial options can be made available. That will allow harmed students to decide whether they want to take a greater or lesser role in applying any sanctions. For some harmed students, a restorative justice conference, in which they have a chance to speak directly to the harming student, offers more healing than a highly regulated proceeding in front of a panel.

No collective norms. Under the previous guidelines, sexual harassment was defined as “unwelcome conduct of a sexual nature.” The person who determined whether or not the conduct was unwelcome was the person allegedly being harassed. That person’s subjective response drove the whole investigation. As long as the complainant felt ill at ease, the Title IX panel should find for the aggrieved party.

But not being welcome hasn’t always been understood in purely subjective terms. Lawyers in workplace harassment cases, in contrast, read “unwelcome” as placing a burden on the aggrieved party to communicate their discomfort. Sometimes known as the “one free pass” rule, courts have understood that anything prior to an explicit rejection of sexual advances is potentially welcome.

On college campuses, however, cases are determined purely on the emotional distress of the complainant. If she (and majority of complainants still use that pronoun) feels demeaned, humiliated or scorned by the lascivious actions of another person, the encounter should be judged as harassment. Unfortunately, the subjective definition the Obama administration used has given an entire generation of college students a sense that painful feelings outrival communication. Students need not communicate their unease or discomfort to the offending party. All that is necessary is mentioning the encounter in passing to a “responsible employee” and the Title IX apparatus will jump into gear.

Under the recent proposed changes, sexual harassment is any “unwelcome conduct on the basis of sex that is so severe, pervasive and objectively offensive that it effectively denies a person equal access to [the college’s] education program or activity.” Under this definition, it won’t be enough merely to claim one’s discomfort. The action must be offensive enough that other people will also find it objectionable.

The benefit for survivors? This change in the definition will mean colleges will have to do a better job of clarifying collective norms. Instead of relying on individuals to police offensive encounters, the new guidelines will require campuses to adopt objective standards of decency, standards that will make it easier for aggrieved parties to voice their unease.

As it turns out, colleges with a strong moral compass are better able to address gender violence. As law professor Leigh Goodmark points out in her new book Decriminalizing Domestic Violence, Xavier University used the Jesuit concept of “cura personalis” — care for a person’s mind, body and spirit — to address gender-based violence. Xavier was able to “mobilize their culture” toward healthier community norms. Without those community norms, individuals are thrown back on their individual sensibilities.

So, yes, the new rules provide more protections for the accused, particularly the right to have a lawyer available to cross-examine witnesses. But they do even more for survivors. By treating survivors as capable decision makers and requiring communities to clarify social norms, students who have been harmed by the sexual advances of others will have a much greater chance of healing and getting on with their education.


Meg Mott teaches politics at Marlboro College and is currently working on a book on freedom, rights and intimate partner violence.


I’m a Democrat and a Feminist. And I Support Betsy DeVos’s Title IX Reforms.

There is an uncomfortable truth in the current system. No one wants to talk about it.

By Lara Bazelon

Ms. Bazelon is the director of the criminal juvenile justice and the racial justice clinics at the University of San Francisco School of Law.

The campus at California State University at Fullerton. Appeals courts have overturned suspensions of students for sexual assault at two California universities, citing a lack of due process.CreditLeonard Ortiz/Digital First Media, via Orange County Register, via Getty Images
The campus at California State University at Fullerton. Appeals courts have overturned suspensions of students for sexual assault at two California universities, citing a lack of due process.CreditCreditLeonard Ortiz/Digital First Media, via Orange County Register, via Getty Images

Education Secretary Betsy DeVos’s proposed regulations overhauling how colleges handle sexual assault, which may become law in January, are far from perfect. But there is a big reason to support them: I’m a feminist and a Democrat, and as a lawyer I have seen the troubling racial dynamics at play under the current Title IX system and the lack of due process for the accused. Ms. DeVos’s proposals take important steps to fix these problems.

Consider this scenario: A young black man enrolls at a state university in California on an athletic scholarship. He’s the first person in his family to go to college. His teammate’s white ex-girlfriend matches with him on Tinder, comes to his apartment, has sex with him and, they both agree, returns three days later to have consensual sex.

Weeks later, the young woman, who has reconciled with her boyfriend, claims the Tinder match raped her during the first sexual encounter. The Tinder Match adamantly denies this. Her boyfriend, who is also black, says she is lying. There is no hearing, no chance for the accused to ask her questions.

But the Title IX investigator concludes that he committed sexual assault by finding her more credible than him under the preponderance-of-the-evidence standard, under which the accuser must prove there is a greater than 50 percent chance her claim is true. He’s one of a few black students on campus and worries he may get killed after word spreads.

This happened in early 2018 to a client in the pro bono clinic I direct with my law students. We represent low-income students of color in California who face expulsion based on allegations of sexual assault.

We see what the Harvard Law School professor Janet Halley described in a 2015 law review article: “The general social disadvantage that black men continue to carry in our culture can make it easier for everyone in the adjudicative process to put the blame on them.” That’s why the DeVos regulations are a step forward.

Here is how they would work. Cross-examination would be conducted by an adviser for the accused (not, as some coverage has erroneously said, by the accused.) The accuser may sit in a separate room or participate via videoconference. The right to cross-examine goes both ways: The accused must also answer questions posed by the accuser’s adviser.

The changes would also do away with the problematic “single investigator system” where the person who interviews the witnesses and gathers the facts also serves as the judge and jury — a method the California State University System uses for its 485,000 students across 23 campuses.

The revisions are in line with court decisions that have characterized the current system as unfair. In August, the Court of Appeals for the Sixth Circuit, ruling in a case from Michigan, declared that if a public university adjudicates what is essentially a “he said, she said” case, “the university must give the accused student or his agent an opportunity to cross-examine the accuser and adverse witnesses in the presence of a neutral fact-finder.” This year, two California appellate courts have overturned university decisions to suspend students for committing sexual assault because their procedures were so lacking in basic due process.

Meanwhile, my client has been barred from campus for more than nine months. (His suspension was based on this allegation and a second allegation by another accuser, which was found to be unsubstantiated by the evidence; that accuser is appealing.) The DeVos regulations and the two California appellate rulings are most likely his only hope of avoiding an expulsion that would tar him as a campus sex offender and most likely prevent him from getting into another school.

The current system of adjudicating sexual assault complaints is broken. Under the rules set up by the Obama administration, hundreds of colleges, including many in California, were placed under federal investigation and threatened with the loss of funding for failing to adequately investigate sexual assault complaints. The definition of what constituted an assault was vastly expanded. Nonpunitive resolutions such as mediation were forbidden, even if that is what both sides wanted.

The Obama rules were written to address a real problem: a tendency by colleges to sweep sexual assault allegations under the rug. But it also gave risk-averse schools incentives to expel the accused without any reliable fact-finding process.

The Office of Civil Rights does not collect data on race in Title IX cases, but the little we know is disturbing: An analysis of assault accusations at Colgate, for example, found that while only 4.2 percent of the college’s students were black in the 2012-13 school year, 50 percent of the sexual-violation accusations reported to the school were against black students, and blacks made up 40 percent of the students who went through the formal disciplinary process.

We have long over-sexualized, over-criminalized and disproportionately punished black men. It should come as no surprise that, in a setting in which protections for the accused are greatly diminished, this shameful legacy persists.

“I’ve assisted multiple men of color, a Dreamer, a homeless man and two trans students,” Professor Halley told me. “How can the left care about these people when the frame is mass incarceration, immigration or trans-positivity and actively reject fairness protections for them under Title IX?”

We can fix this. The DeVos reforms are in their public comment period, which gives people on all sides of this debate a chance to weigh in. That is a good thing. I know my allies on the left will criticize my position, but we cannot allow our political divisions to blind us to the fact that we are taking away students’ ability to get an education without a semblance of due process. What kind of lesson is that?

Lara Bazelon (@larabazelon), an associate professor at the University of San Francisco School of Law, is the author of, most recently “Rectify: The Power of Restorative Justice After Wrongful Conviction.”

A version of this article appears in print on , on Page A31 of the New York edition with the headline: A Liberal Case for DeVos’s Reforms.

Nearly 300 Profs, Lawyers Sign Letter in Favor of New Title IX Regulations

Education Secretary Betsy DeVos speaks about campus sexual assault and enforcement of Title IX, the federal law that bars discrimination in education on the basis of gender, Thursday, Sept. 7, 2017, at George Mason University Arlington, Va., campus. (AP Photo/Jacquelyn Martin)
Nearly 300 professors, lawyers, and Title IX experts have signed an open letter in favor of the newly proposed Title IX regulations, which bolster due process, allow cross-examination, and require presumption of innocence.

Organized by the Maryland nonprofit SAVE Services, the letter was unveiled by attorney Margaret Valois on Capitol Hill last Thursday, and was compiled to shatter the myth that strengthening due process in Title IX investigations will hurt women, especially survivors.

“The numerous signatures reveal that noted attorneys, legal scholars, other professionals and legislators… recognize and uphold the important concept of due process and recognize that it is lacking in campus disciplinary proceedings,” Valois told PJ Media.

“Now is not the time for complacency,” said Valois.

Noted signees include Cynthia Garrett of Families Advocating for Campus Equality (FACE), National Coalition for Men board member Marc Angelucci, University of Southern California Professor James Moore, and many others (click here to see the full list).

In an interview with PJ Media, Cynthia Garrett, who also is a California lawyer, said she signed SAVE’s letter to “help get the message out.”

“We’ve seen a combination of factors come together to historically reduce due process in Title IX investigations, one of which is the [now retracted] 2011 Dear Colleague Letter,” said Garrett by phone Monday.

“It lowered the standard of evidence, broadened the definition of sexual misconduct, and allowed the Department of Education to pursue colleges for perceived infractions in a more punitive manner,” said Garrett of the 2011 DCL.

Under the Obama-era zeitgeist, Title IX investigators began presuming every man is a rapist and every woman is a victim, suggested Garrett, who has consulted with hundreds of college men and women over the past decade on Title IX-related issues.

“These students often have had no notice of what they’re accused of, no access to evidence, no ability to find witnesses, no ability to see the evidence… so, that’s what happens to accused students in most cases,” she added.

Three members of the James G. Martin Center for Academic Renewal — a noted education nonprofit in North Carolina — also added their names to the list.

“We signed on with SAVE’s letter because far too little attention has been given to the serious due process problems under Title IX,” said George Leef, who serves as one of the Center’s experts on education policy.

While the proposed Title IX regulations are subject to change, many lawyers view Betsy DeVos’s proposal as a good sign.

“Due process and the presumption of innocence are important,” said Texas lawyer Mark Pulliam when asked why he signed. “But when they disappear, what’s left is raw power. If you take freedom seriously, raw power is a scary thing.”

Going forward, members of the public can provide feedback on the proposed regulations anonymously or otherwise by visiting this webpage. The ability to provide input is slated to end on January 28, 2019 at 11:59pm.


Historic Advance for Fairness on Campus: Due Process Statement Signed by Nearly 300 Legal Experts and Scholars is Released

Contact: Rebecca Stewart

Telephone: 513-479-3335


Historic Advance for Fairness on Campus: Due Process Statement Signed by Nearly 300 Legal Experts and Scholars is Released

WASHINGTON / December 4, 2018 – Today, 294 law professors, other legal experts, and scholars from across the country are releasing a Due Process Statement that enunciates key principles for the investigation and adjudication of campus sexual assault cases. The Statement is designed to correct the erosion of due process protections that has plagued college campuses in recent years.

The Due Process Statement notes strong public support for campus due process, calls for balanced and objective investigations, highlights the fact that false allegations undermine the credibility of future victims, and urges lawmakers to speak out publicly in support of due process. The Statement cites the statement by Supreme Court Justice Ginsburg who said about campus procedures, “The person who is accused has a right to defend herself or himself…everyone deserves a fair hearing.”

For years, campus disciplinary committees have given short shrift to fair procedures, giving rise to terms like campus “kangaroo courts.” In 2011 the Office for Civil Rights issued a Dear Colleague Letter on sexual violence that attempted to remedy these procedural deficiencies, but the federal policy only served to make matters worse.

The SAVE Special Report, Six-Year Experiment in Campus Jurisprudence, documents how the system of campus adjudications created by the federal mandate has shortchanged both sexual assault complainants and accused students (1). As a result, hundreds of identified victims and accused students filed lawsuits and OCR complaints (2).

The Due Process Statement is available online (3).




SAVE — Stop Abusive and Violent Environments — is working for effective and fair solutions to campus sexual assault:


294 Legal Experts, Lawmakers, And Attorneys Sign Letter Supporting Due Process For College Students

Stop Abusive and Violent Environments (SAVE) has been one of the leading voices working to get basic constitutional rights in campus tribunals, and released a statement in support of granting such right to college and university students. The statement said that “fair and non-biased disciplinary proceedings are essential for the investigation and adjudication of sexual misconduct allegations on college campuses.” It also said “investigations that are balanced, objective, and fair are an essential element of due process” and “both complainants and the accused benefit from an even-handed and transparent process that guarantees procedural due process.”

survey from the Bucknell Institute for Public Policy, conducted by YouGov earlier this year, found that Americans still believe in due process even after a sustained media campaign against it when it comes to male college students, celebrities, and even Supreme Court nominees accused of sexual assault. Results from the study showed that high levels of Americans — whether Republican, Independent, or Democrat — support due process and what goes with it, such as the right to cross-examine one’s accuser.

Eighty-one percent of those polled said that those accused should have the right to be informed of the charges against them (current campus policies do not support this right in many cases), 61% believe the accused should be able to cross-examine their accusers (the Obama administration actively discouraged this), and 67% said students accused of crimes on campus should have the same legal protections as they would in a court of law.

Several lawmakers have also signed the letter, including Republican Frank V. Sapareto, vice chair of the Criminal Justice & Public Safety Committee in the New Hampshire House of Representatives.

In addition to lawmakers, attorneys, and law professors, the letter also contains signatures from other scholars and even a retired NASA scientist.

The new proposed rules from the Education Department are now up for comment before becoming official. When the Obama administration created new campus sexual assault rules, it did not follow proper procedure by allowing experts and the public to comment on the rules before they were mandated. Following these procedures will give the new rules extra heft, and will hopefully stop the moral panicsurrounding sex on college campuses.