Book Club: *FIRE's Guide to Due Process and Campus Justice*
How to defend yourself against campus tribunals
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🔑 Key Concepts
Due Process
Due process means fair procedure:
Over time, we have learned that we cannot separate how we reach decisions from the justice of those decisions.
Innocent Until Proven Guilty
The presumption of innocence — “innocent until proven guilty” — is central to our system of justice and our sense of fundamental fairness . When a public college seeks to discipline you , you should never have to prove your innocence . Rather , the college bears the burden of proving you guilty . Some evidence of your guilt , at least, has to be presented. You then must be given some opportunity to rebut the evidence.
Procedural vs. Substantive Due Process
Procedural due process is a legal term that refers to the specific rules that govern how an accusatory proceeding is carried out — in other words , the steps by which a case is “ tried ” in order to determine the truth or falsity of an accusation.
Substantive due process deals with a person’s rights to be free from government interference, such as the right to privacy, and protect you from vague, overbroad, and unfair rules.
Both forms are protection in the 5th and 14th amendments to the Constitution.
The Fifth Amendment’s due process clause limits the power of the federal government and its institutions , while the Fourteenth Amendment’s due process clause restricts the power of state governments .
Liberty and Property Interests
Findings of guilt in an academic tribunal may not carry criminal charges, but they do affect a substantial “liberty interest,” because “a person’s good name , reputation , honor , or integrity is at stake.”
They also affect the students’ property interests,
The progress that a student has made toward a degree constitutes property — a thing of value that belongs to a person — because of all the time and money that he or she has invested in progressing towards that degree .
Rights for the Accused in Disciplinary cases
At the absolute minimum , students in campus disciplinary cases are entitled to have ( 1 ) notice of the charges against them , ( 2 ) an explanation of the evidence against them , and ( 3 ) an opportunity to tell their side of the story .
Goss v. Lopez (1975)
A Supreme Court case in which the court ruled that the state of Ohio had denied a student due process by allowing a school to suspend him without allowing him to give his side of the story.
Goss remains the Supreme Court’s clearest statement on student due process rights.
Protections at Private Universities
While public universities are held to a higher standard when it comes to free speech cases and the like, private institutions are given more leeway to discipline students according to the rules those students agreed to, such as a Christian college not allowing cohabitation of unmarried students.
This stems from basic contract law:
The basic principle of contract law is also one that lies at the heart of morality : People have to live up to their reciprocal promises . If one party agrees to a contract and doesn’t honor it , a court can force that party to do so and can award monetary damages to the other party . If you agree to attend a university and pay tuition and fees , and you do so relying upon the rules and regulations that the university tells you it has established , then a deal of sorts has been struck , roughly like a legal contract . In the same way you must pay your tuition , the university must deliver the due process protections it promises you in its policies .
Title IX and the Department of Education’s Office for Civil Rights (OCR)
Why are colleges often tasked with adjudicating seeming criminal cases for serious charges like sexual assault?
All educational institutions that receive federal funding — virtually all colleges and universities , both public and private — have special legal obligations when dealing with complaints of sexual harassment and sexual assault . … Title IX of the Education Amendments of 1972 states , “ No person in the United States shall , on the basis of sex , be excluded from participation in , be denied the benefits of , or be subjected to discrimination under any education program or activity receiving Federal financial assistance . ” Federal regulations interpreting Title IX mandate that educational institutions receiving federal funding must establish “ prompt and equitable ” grievance procedures to hear and resolve complaints of sex discrimination . In the years since Title IX’s passage , both courts and the Department of Education’s Office for Civil Rights ( OCR ) , the federal agency responsible for enforcing Title IX and other federal anti - discrimination statutes , have interpreted “ discrimination ” to include sexual harassment and sexual assault . As a result , the Title IX regulatory requirement of “ prompt and equitable ” grievance procedures applies both to complaints about sexual discrimination by an institution and complaints against particular students , faculty , administrators , or staff for sexual harassment and sexual assault .
“Hostile Environment”
The vagueness of the wording under Title IX makes it such that free speech often comes under threat if it can be claimed to create a hostile environment for students.
If a college learns of hostile environment harassment , it must take action “ reasonably calculated ” to eliminate it and prevent its recurrence .
But what counts as hostile, and what counts as reasonable?
THE FIRST AMENDMENT AND THE “CHILLING EFFECT”
The First Amendment to the United States Constitution provides that “ Congress shall make no law … abridging the freedom of speech , or of the press ; or the right of the people peaceably to assemble . ” This rule — that everyone can express himself or herself without undue government interference — is a cornerstone of our liberty and of our democracy . In free speech cases , the courts have been very careful not to permit any rule that could leave unclear what speech one may or may not utter — a rule prohibiting “ bad speech , ” for example . If individuals are afraid to speak their minds because of the possibility that their speech may be found to be illegal , they will likely refrain from speaking at all . Their speech would be “ chilled ” — that is , diminished and stifled . Preventing this “ chilling effect ” so that free people may speak their minds without fear is one of the essential goals of the First Amendment .
Standards of Proof
In 2011, a “Dear Colleague” letter from the OCR issued guidance that threatened to revoke federal funding from schools that did not adopt the lowest legal “standard of proof” in determining the guilty of a student accused of sexual assault.
The following different standards of proof are used by various college and university tribunals . They are defined here in the order of how difficult they are to meet , from the most to the least difficult . • Beyond a reasonable doubt : “ fully satisfied , entirely convinced , satisfied to a moral certainty ” • Clear and convincing evidence : “ reasonable certainty of the truth … the truth of the facts asserted is highly probable ” • Preponderance of evidence : “ more probable than not ” • Substantial evidence : “ such evidence that a reasonable mind might accept as adequate to support a conclusion ” • Some evidence : any evidence at all supporting the charge ( Direct quotations are from Black’s Law Dictionary . )
The OCR selected “preponderance of evidence” as the standard:
Per OCR’s letter , under Title IX , the “ prompt and equitable resolution ” of allegations concerning sexual harassment and sexual violence requires application of the “ preponderance of the evidence standard ( i.e . , it is more likely than not that sexual harassment or violence occurred ) . ” OCR’s interpretation of Title IX to require the use of the preponderance of the evidence standard broke new ground ; this requirement had not previously been “ discovered ” in the law . In fact , OCR had previously granted universities far greater flexibility with regard to both the standard of proof used and other procedural details .
Affirmative Consent
Some states like California have adopted rules vaguely defining the legal requirement that both parties to a sexual activity must give “affirmative consent” to initiate and sustain the legality of the activity throughout. It’s unclear what this actually means, or how it could possibly be enforced given the intimate nature of much sexual activity, and the importance of body language over “affirmative” verbal consent. This idea has been regularly parodied for its conflict with reality.
How might an innocent student demonstrate he or she received affirmative consent under California’s new law , for example ? In response to this question , the statute’s co - author , Assemblywoman Bonnie Lowenthal , simply said , “ Your guess is as good as mine . ”
📰 Additional Resources
Opinion | Biden Renews Obama's Attack on Campus Due Process, by Joe Cohn, June 23, 2022
Title IX, FIRE overview of the Title IX legislation
5 Ways Biden's New Title IX Rules Will Eviscerate Due Process on Campus. Robby Soave, Reason, 6/23/2022