[gview file=”https://georgiapoliticalreview.com/wp-content/uploads/2019/02/Anzulies_Due-Process.tif”]By Robyn Anzulis
Early in the summer of 2015, the University of California at San Diego (UCSD) suspended a student after he was found guilty of sexual assault by a university panel. The panel came to this conclusion after careful consideration of the testimony of numerous witnesses and the findings of an investigation conducted by the university’s Office for Prevention of Harassment & Discrimination (OPHD). University officials believed that the situation was settled. After all, they had acted quickly and efficiently, handling the allegations in accordance with Title IX requirements. But the student, referenced in court documents as John Doe, sued the university for violating his right to due process. He claimed that during his expulsion hearing, the university failed to adhere to procedural standards that would ensure he had a fair chance to defend himself. John Doe won.
In his verdict, Judge Joel Pressman denoted a number of legal mistakes committed by the university. For instance, Doe did not have the “right to confront” witnesses against him. In other words, he was unable to cross-examine his accuser and the OPHD investigator. He was allowed to submit questions for his accuser to the head of the panel; however, the panel chair omitted twenty-four out of his thirty-three questions and rephrased the rest. Pressman also noted that the OPHD investigator came into the case having already drawn a conclusion regarding Doe’s guilt. He argued that the panel, established to determine the innocence or guilt of Doe for themselves, may have simply yielded to the investigator’s conclusion, essentially presuming his guilt before fully evaluating all of the relevant evidence. Pressman stated that this was even more plausible given that Doe was not allowed to review the findings of the investigation or question the investigator. As a result of these violations of Doe’s due process rights, the judge mandated that UCSD reinstate him as a student.
There are many more John Does who have gone or are currently going through the legal system because of violations of their due process rights on college campuses. At George Mason University, a student challenged his suspension for sexual assault upon learning that the university had made the decision to suspend him after considering other charges against him, charges of which he had not been notified. At Brandeis University, a judge refused to dismiss an accused student’s complaint that the university did not adhere to “basic fairness” in its investigation of him. Among his complaints were failure to provide detailed statements of the accusations against him, denial of his right to an attorney, and refusal to allow him to cross-examine witnesses. At the University of Wisconsin at Madison, a football player accused of rape is hoping to delay a university hearing about his case because he fears that he may be forced to incriminate himself before his criminal trial.
The Fifth and Fourteenth Amendments to the United States Constitution establish the precedent for due process under the law. These amendments ensure that no citizen will be deprived of “life, liberty, or property” without adherence to stringent legal procedures. The Fifth Amendment secures due process during criminal trials. The Fourteenth Amendment applies due process to state governments and expands it to include all instances in which a citizen could lose some right or privilege. It also requires that public colleges and universities respect due process.
Over the last decade, this has become increasingly difficult. In 2011, the Department of Education sent out a “Dear Colleague” letter to over four thousand colleges and universities detailing significant reforms that would seek to prevent instances of sexual crimes from occurring on campuses and ensure that victims of such crimes receive justice. However, many of these policies test the boundary between legitimate protection of victims of sexual misconduct and violation of the due process rights of the accused. For instance, the new policy mandated that schools use the “preponderance of evidence” standard for determining guilt, meaning that accused persons would be found guilty if there is a greater than fifty percent chance that they committed the crime. This federal educational standard contrasts with many colleges’ previous, more stringent “clear and convincing evidence” standard and criminal courts’ “beyond a reasonable doubt” standard. Additionally, the Department of Education imposed restrictions on the ability of the accused to cross-examine victims and witnesses. After releasing the letter, the Department increasingly advocated for a single investigator to examine evidence, hear witness testimony, and decide the outcome of each case instead of granting decision-making power to an independent committee. These policies and suggestions have been implemented as Title IX regulations, meaning that public colleges and universities must comply or risk losing federal funding.
While these and other measures seek to assist victims of sexual assault, their consequences for due process on college campuses are problematic. In 2017, the Foundation for Individual Rights in Education (FIRE) conducted an investigation into the due process policies of the top fifty-three American universities. FIRE found that only fourteen institutions guaranteed a presumption of innocence until proven guilty, only twenty-one allowed the accused to cross-examine witnesses, and only three gave the accused the right to an attorney. Less than half required impartial fact-finders, and many did not provide clear-cut guarantees that accused students would receive adequate notice of accusations, sufficient preparation time before hearings, and access to evidence being used against them.
Undoubtedly, the intentions behind policies which limit due process are noble, seeking to protect victims of sexual misconduct and ensure that perpetrators are brought to justice. But as colleges continue to violate students’ rights, they risk encountering potential perpetrators back on campus after lengthy, expensive lawsuits. Furthermore, due process protections seem popular among college students. A 2018 FIRE survey found that 98 percent of college students support due process on campus, although the percentage supporting due process decreases slightly when the question specifically relates to sexual misconduct.
In an attempt to restore due process rights, the administration of President Donald Trump has rolled back some of the policies stipulated in the “Dear Colleague” letter, such as the mandate that schools use the “preponderance of evidence” standard of proof. But in light of the #MeToo movement and resistance from college administrators and students, it seems likely that the John Does of America will continue to rely on the courts to uphold their due process rights.