Top universities have developed three tiers of justice for students accused of sexual misconduct and other offenses, stacking the deck against defendants, according to a new report by an education watchdog.
The report by the Foundation for Individual Rights in Education (FIRE) comes as the Biden administration appears poised to push schools back from Title IX regulations adopted last year to establish due process in university investigations and disciplinary proceedings.
FIRE examined 53 top universities’ policies for adjudicating complaints, particularly those involving sexual harassment, which fall under regulations implemented by the Trump administration in 2020. Those regulations were designed to restore protections for accused people after the Obama administration had forced schools to lower the standard of evidence used in such cases from “clear and convincing” to a “more likely than not.”
Under the new regulations, those accused of sexual misconduct or other offenses are entitled to be presumed innocent, to have impartial fact-finders and to cross-examine one’s accuser — bedrock principles of American criminal and civil law.
But among the Ivy League and top campuses such as Stanford University, the University of Chicago and Duke University, such protections are not routinely afforded, according to the FIRE report.
Indeed, 44 of the 53 top-ranked schools received a “D” or “F” when it came to safeguarding the rights of the accused, according to the report.
The report found that schools have one set of procedures for covering offenses under Title IX, another for sexual misconduct offenses that occur outside of the school’s control and a third for all other alleged non-academic offenses. Title IX is the federal prohibition on sexual discrimination in education.
Only in the Title IX category, which is covered by the Trump-era regulations, do accused people enjoy fundamental guarantees, according to FIRE.
“Institutions are taking every opportunity to avoid providing due process across the board — even going so far as to create three separate disciplinary systems per campus to afford students as few protections as possible,” said the report’s author, Ryan Ansloan.
“America’s top universities are offering rock-bottom due process protections,” Mr. Ansloan said.
The topic has been noteworthy in recent years in the area of Title IX sexual misconduct allegations.
The issue arose under the Obama administration in 2011, when the assistant secretary for civil rights in the Department of Education wrote a letter to 7,000 schools that receive federal money.
The letter, known as the “Dear Colleague” letter and concerned with the duties of schools’ Title IX coordinators, did not have the force of law but was understood by those who received it as a veiled threat to imperil federal funding if they did not follow the guidelines.
At that time, the under secretary for civil rights was Catherine Lhamon. Her nomination for the same job by President Biden has been widely interpreted in the academic and legal community as a signal the administration wants to revert to the policies in place during the Obama years.
When the new regulations were mooted last May, Ms. Lhamon tweeted they would “take us back to the bad old days … when it was permissible to rape and sexually harass students with impunity.”
In her Senate confirmation hearings this month, Ms. Lhamon did not back away from that view and she also declined to give assurances that she believed accused students were entitled to the presumption of innocence.
Instead, she allowed that investigators “should be open to the possibility that the person is not guilty.”
The Education Department this month issued a Q&A on Title IX sexual harassment stressing that schools must prosecute alleged incidents even when no formal complaint has been made and there are no willing witnesses.
The department did not respond Wednesday to questions about what prompted the Q&A and what it aimed to accomplish.
The Q&A, along with Ms. Lhamon’s nomination and the oddly structured system in place on many top campuses now, all point in a troubling direction, said FIRE Executive Director Robert Shibley.
“We were finally seeing student rights moving in the right direction, but Catherine Lhamon’s nomination shows just how threatened the progress we’ve made is,” he said. “If confirmed, Lhamon’s history and rhetoric indicate that she will put her thumb on the scale of justice, ripping away fundamental rights and encouraging a patently unfair shadow justice system that deprives students of their right to due process.”
Sign up for Daily Newsletters
