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FIRE Spotlight on Due Process 2018 report

Colleges and universities across the country are failing to afford their students due process and fundamental fairness in their disciplinary proceedings. These institutions investigate and punish offenses ranging from vandalism and housing violations to felonious acts of sexual assault, handling many cases that are arguably better left to courts and law enforcement. But their willingness to administer what is effectively a shadow justice system has not been accompanied by a willingness to provide even the most basic procedural protections necessary to fairly adjudicate accusations of serious wrongdoing.

In November 2018, the Department of Education’s Office for Civil Rights proposed new federal regulations that would require schools to provide many procedural safeguards in sexual misconduct cases. If the regulations are enacted as proposed, a fairer status quo might be on the horizon. But for now, most institutions of higher education maintain disciplinary policies and procedures that fail all students involved.

Last year, for the first time, the Foundation for Individual Rights in Education rated the top 53 universities in the country (according to U.S. News & World Report) based on 10 fundamental elements of due process. Our findings were troubling; most institutions lacked most of the procedural safeguards we looked for in written policies. This year, we assessed the same institutions, but slightly adjusted our criteria in order to better capture the varied ways that universities adjudicate misconduct cases. Like last year, the findings are dire:

  • Nearly three quarters (73.6%) of America’s top 53 universities do not guarantee students that they will be presumed innocent until proven guilty.

  • Only slightly more than half of schools (52.8%) require that fact-finders—the institution’s version of judge and/or jury—be impartial.

  • Fewer than one third of institutions (30.2%) guarantee a meaningful hearing, where each party may see and hear the evidence being presented to fact-finders by the opposing party.

  • 47 out of the 53 universities studied receive a D or F grade from FIRE for at least one disciplinary policy, meaning that they fully provide no more than 4 of the 10 elements of a fair procedure that FIRE rated.

  • Most institutions have one set of standards for adjudicating charges of sexual misconduct and another for all other non-academic charges. 86.8% of rated universities receive a D or F for protecting the due process rights of students accused of sexual misconduct.

  • Of the 104 policies rated at the 53 schools in the report, not a single policy receives an A grade.

Read more details of FIRE's report HERE.

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