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‘Innocent Until Proven Guilty’? Not At Most American Universities

Students attending America’s colleges and universities believe they should receive proper due process if they are accused of breaking campus rules, yet most schools fail to provide them with such fairness.

A recent report from the Foundation for Individual Rights in Education (FIRE) found some alarming statistics about the nation’s top 53 institutions of higher learning, including that nearly three-quarters of them do not presume the innocence of students accused of a range of crimes, such as vandalism, theft, or sexual assault.

Some 90% do not guarantee accused students the right to cross-examine their accusers (or vice versa). Further, not one of the schools surveyed by FIRE includes the due process rights required under the new, proposed Title IX regulations from the Education Department.

“Students accused of serious campus offenses routinely face life-altering punishment without a meaningful opportunity to defend themselves,” Susan Kruth, lead author of the FIRE report, said in a statement.

“Universities need to provide basic procedural protections that help ensure accurate outcomes, and right now they overwhelmingly do not.”

FIRE found the top universities using the U.S. News and World Report’s annual rankings, and rated the institutions based on how many of 10 “fundamental procedural safeguards” provided to students. Those 10 safeguards are:

1. A clearly stated presumption of innocence, including a statement that a person’s silence shall not be held against them.

2. Timely and adequate written notice of the allegations before any meeting with an investigator or administrator at which the student is expected to answer questions. Information provided should include the time and place of alleged policy violations, a specific statement of which policies were allegedly violated and by what actions, and a list of people allegedly involved in and affected by those actions.

3. Adequate time to prepare for a reasonably prompt disciplinary hearing. Preparation shall include access to all evidence to be used at hearing.

4. The right to impartial fact-finders, including the right to challenge fact-finders for conflicts of interest.

5. The right to a meaningful hearing process. This includes having the case adjudicated by a person or group of people—ideally, a panel—distinct from the person or people who conducted the investigation (i.e. the institution must not employ a “single-investigator” model).

6. The right to present all evidence directly to the fact-finder.

7. The ability to question witnesses, including the complainant, in real time, and respond to another party’s version of events.

8. The active participation of an advisor of choice, including an attorney (at the student’s sole discretion), during the investigation and at all proceedings, formal or informal.

9. The meaningful right of the accused to appeal a finding or sanction.

10. A requirement that factual findings leading to expulsion be agreed upon by a unanimous panel or supported by clear and convincing evidence.

FIRE awarded schools points based on their policies surrounding each of the 10 safeguards: 0 points for no policy, 1 point for a partial policy, and 2 points for a complete policy.

Of the 53 institutions surveyed by FIRE, 47 (88.6%) guaranteed no more than four of the 10 safeguards.

“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,” FIRE wrote.

This flies in the face of what students want. Earlier this year, FIRE surveyed college students about due process rights and found that 85% felt accused students should be presumed innocent until proven guilty (just 26% of surveyed institutions provide such a guarantee), 75% supported cross-examination (just 10% of institutions provide some form of this opportunity), and 80% believed students accused of crimes should be allowed to have a lawyer present at their campus procedures (just one school allowed this).

Should the new Title IX regulations be adopted next year, America’s colleges and universities are going to have to spend a lot of time making their policies fair for students.

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