The nonpartisan Foundation for Individual Rights In Education (FIRE) has issued a periodic report on the state of due process in disciplinary actions at America’s most prestigious universities. It is a “good news, bad news” assessment. First, the good news. According to FIRE Executive Director Robert Shibley, “We were finally seeing student rights moving in the right direction,” crediting 2020 approval of Department of Education regulations dealing with violations of Title IX, a 1972 law prohibiting sex discrimination, as applied in disciplinary proceedings involving sexual misconduct. The new regulations, for example, require colleges to have a presumption of innocence for accused sexual offense offenders, and most school have followed that rule as required—but NOT for other types of campus offenses, creating a multi-tiered system of campus justice. Other procedural safeguards for those accused of sexual misconduct under the new regulations are generally followed by colleges, such as giving the accused the right to a meaningful hearing where he or she can question the accuser, or a right to have an attorney or other adviser present.

The bad news, as FIRE sees it: “Catherine Lhamon’s nomination...shows how threatened the progress we’ve made is” says Shibley. Lhamon is the Biden nominee for Assistant Secretary of Education for Civil Rights, a position she earlier held in the Obama administration. She ferociously enforced policies that circumvent or highly discourage such mainstays of Anglo-American jurisprudence as the presumption of innocence, the right of cross examination, the separation of the prosecutorial process from the adjudication decision, etc. She advocated for relatively low standards of proof—not the “beyond a reasonable doubt” or “clear and convincing evidence” standards commonplace in American criminal law.

According to FIRE official Ryan Ansloan, “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 legally permissible.” One set of rules might apply for sexual conduct matters under the Department of Education guidelines, another for sexual conduct matters that do not come under those guidelines (for example, alleged sexual misconduct by students occurring off campus), and a third set for cases involving other incidents—fighting, destruction or theft of property, drug use, etc.

FIRE provided grades for due process standards at 53 campuses. For 44 of those schools, they received at least one D or F grade. For example, “ 62.2% of America’s top 53 universities [according to US News] do not explicitly guarantee students they they will be presumed innocent until proven guilty.” That changed with the 2020 guideline with respect to sexual offense charges only, but the Biden Administration and Lhamonon appear likely will try to backtrack on recent improvements in due process.

Two questions continually bother me. First, why should criminal sexual conduct activity not be like other allegedly felonious crimes, with the accused punished in a court of law, with university action following only if the American criminal justice system with all its safeguards finds the accused guilty? It seems reasonable that an 18 year old alleged rapist who is a college student should be treated the same as a individual of the same age who is not attending college.

Second, why should our nation’s institutions of higher learning, that should be following, even promoting, the virtues of the American rule of law, deviate so dramatically from American notions of fair play and protection of the accused until proven guilty? From personal involvement in supporting a few students in disciplinary actions, I have been struck at how mean-spirited, even vindictive some university student life officials seem to be towards student members of the community. As a citizen who has been a foreman of a grand jury and been involved in dozens of civil court proceedings as an expert witness, I would say on average the level of respect towards the accused is lower in university proceedings. To be sure, that is an unscientific observation based on anecdotal evidence, but I have read enough reports from other universities to suggest it is a national problem. Do university student affairs administrators ever get fired for being nasty and unfairly treating students? I bet it is rare.