A non-profit, non-partisan group, the Foundation for Individual Rights in Education (FIRE), which advocates for free-speech and due process rights in higher education, last year surveyed 53 top-ranked U.S. colleges and universities and found major deficiencies in how those rights are protected in campus investigations of alleged sexual misconduct.
That leads to a related question: what rights and procedures do higher-education students view as desirable for American colleges and universities to provide in such cases? FIRE’s new study, Proceeding Accordingly: What Students Think about Due Process on Campus, released in mid-June, casts significant new light on that question.
To obtain objective data on the actual opinions and attitudes, FIRE used a grant from the John Templeton Foundation to hire YouGov, a well-respected, non-partisan polling and research firm, to design and conduct a nationwide survey for current undergraduates in two- or four-year U.S educational institutions.
During two weeks from late January to mid-February this year, about 2,450 students pulled from a large YouGov database took an average of eight minutes to complete an online opinion survey of their views on appropriate due process protections in one of three college investigative scenarios: a student alleged to have “broken a rule,” another accused of having “engaged in sexual misconduct,” or an underage student who supposedly “drank alcohol.”
After the student responses were weighted for gender, race and age, and the samples adjusted in line with a larger national dataset, the survey had nearly 750 responses for each scenario, and 2,225 responses overall. The survey responses for all respondents were calculated to have a margin of error of +/- 2.2% at the 95% confidence level, and +/-3.8% for each of the subgroups assessing one of the three scenarios.
The most striking finding of the survey: by overwhelming margins, students supported fundamental due process protections followed by few top colleges and discarded or discarded by the Department of Education’s regulations and “guidance” issued during the Obama administration on schools’ obligations under Title IX (which obligates recipients of federal funds to investigate and act against sexual harassment or sexual misconduct).
Until those commands were rescinded by the incoming Trump administration officials, colleges were directed to use a “preponderance of the evidence” standard in their disciplinary proceedings against students under Title IX. The much-criticized “Dear Colleague” letter circulated by the Department of Education in April 2011 tried to overcome any presumption of innocence for the accused, and strongly discouraged allowing defendants to cross-examine witnesses.
In sharp contrast, 80% of students responding to the new survey supported giving a student accused of sexual misconduct in a college disciplinary proceeding the presumption of innocence (as the student would receive in a criminal trial); only 14 of the top 53 colleges FIRE had earlier surveyed permitted that.
The student survey also showed broad support for giving accused students the right to present additional evidence at a disciplinary hearing (88%), receive written notice of allegations against them (86%), and having an advisor to assist them at a disciplinary hearing (77%). If the student is accused of a criminal offense, 80% believe a lawyer’s assistance should be allowed.