They are among the elite of higher education: Boston University, College of William & Mary, Dartmouth, Johns Hopkins, Northwestern, Penn State, Notre Dame, Vanderbilt and others.
They represent, to many, the epitome of education. The best understanding of history, social events, medicine, science, literature and law.
Yet all of those schools, and many more, fail to ensure that students accused of on-campus infractions are presumed innocent until proven guilty.
The Foundation for Individual Rights in Education released Tuesday what it described as a first-ever report on the subject, “Spotlight on Due Process 2017.” It concludes that 74 percent of the nation’s top 53 universities in the study “don’t even presume a student innocent until proven guilty.”
FIRE graded “a shocking 85 percent” of the institutions at a “D” or an “F” for violating ordinary and constitutional due process protections.
“Most people will probably be surprised to learn that students are routinely expelled from college without so much as a hearing,” said Samantha Harris, FIRE’s vice president of policy research. “This report should be a huge red flag to students, parents, legislators, and the general public that an accused student’s academic and professional future often hinges on little more than the whim of college administrators.”
The report judged the schools based on whether they guarantee students accused of campus misconduct 10 core elements of fair procedure.
The elements are the presumption of innocence, written notice, time to prepare, no conflicts of interest, impartial fact-finders, access to all evidence, cross-examination, right to counsel, right to appeal and the requirement that an expulsion be ordered only on a unanimous verdict.
FIRE’s report found that 74 percent of top universities do not even guarantee accused students the right to be presumed innocent until proven guilty.
Making matters still more unjust, fewer than half of schools reviewed (47 percent) require that fact-finders – the institution’s version of judge and/or jury – be impartial,” the organization reported.
Additionally, 68 percent of institutions “fail to consistently provide students a meaningful opportunity to cross-examine their accusers or the witnesses against them – despite the fact that the Supreme Court has called cross-examination the ‘greatest legal engine ever invented for the discovery of truth,'” the group said.
“Most institutions have one set of standards for adjudicating charges of sexual misconduct and another for all other charges,” the report found.
FIRE said it has publicly “led the fight to restore due process on our nation’s campuses by highlighting abuses and bringing the attention of media, lawmakers, and the public to the problem.”
“We were motivated to undertake this project by our success in working with colleges and universities to reform policies that violate students’ free speech rights,” the organization explained.
“The dramatic drop in restrictive speech codes in the years since FIRE first began rating university speech policies – and challenging institutions to improve them – has encouraged us to strive towards similarly positive results in the due process context. It is our hope that our due process ratings will provide universities with clear criteria for improving the fairness of their student conduct processes.”
FIRE said that of the 102 policies at 53 institutions rated for its report, not one received an A grade. Only two institutions – Cornell University and the University of California at Berkeley – earned a B for protecting student due process rights in both sexual and non-sexual misconduct cases.
Part of the problem is a “Dear Colleague” advisory letter written by the Obama administration in 2011 ordering schools to use the very low “preponderance of the evidence” standard to decide sexual misconduct cases.
That simply means someone can be convicted and punished if an official – not necessarily a neutral party – thinks it’s more likely than not that misbehavior happened.
“The decisions made by campus tribunals have serious and lasting consequences,” said Susan Kruth of FIRE. “Colleges and universities must maintain policies designed to help fact-finders arrive at the truth. That way, institutions can discipline students who have been fairly adjudicated to be guilty without needlessly punishing innocent students.”
The report said two were graded “B,” six were “C,” 28 were a “D” and 17 flunked.
“The presumption of innocence,” the report said, “is perhaps the most fundamental right that can be granted to students accused of misconduct. Without it, other procedural safeguards still may not be enough to protect students from the risk of inaccurate findings of guilt.”
