American Academia’s War on Due Process

We are still, for the most part, a nation of laws, except on college campuses.

At the Heritage Foundation recently, Samantha Harris, director of policy research at the Foundation for Individual Rights in Education (FIRE), said that “students have complained about the lack of due process” at colleges. “In the last five years, thanks to unprecedented intrusion by the federal government…due process has gotten a lot worse,” she said. Too often, accused students are left “without a hearing or [cannot] confront their accuser” in court, Harris averred. By her estimate, “more than 60 students have filed lawsuits” of unfair treatment by colleges by withholding due process.

She said that in her travels, people ask, “Why are colleges handling rape cases?” Her answer? “The short answer is Title IX.” “Over the years,” Harris pointed out, “reports and administrative agencies have expanded the meaning of discrimination to sexual assaults,” rapes and other types of cases. Title IX has “inserted the agency directly into the minutia” of sexual assault cases that have gotten media attention. The Office of Civil Rights (OCR) at the Department of Education discourages cross-examination by college administrators, which is considered an essential part of a fair trial by lawyers. If a college rejects this Title IX directive from the OCR, it is found to be out of compliance and will see their its federal funding revoked.

The OCR has pushed the “single investigator model,” which has “been praised by the Obama administration to protect against sexual assault.” But, it is a troublesome model in which a single person investigates, interviews and issues a verdict without a hearing as if that investigator were the judge and jury. Harris said, that this “blanket presumption of guilt” regarding sexual assaults is troublesome to her and students alike.

Since 2014, the “OCR dramatically ramped up its investigations” of institutions. According to Harris’s count, “In May of 2014…the number was 55. By August of 2015, 128 schools were under investigation” by the OCR for Title IX violations, more than doubling down in just one year. The OCR made these figures public, a first for the agency, which raises many questions among the higher education community. Harris also suggested there is a “strong possibility that OCR’s guidance here may have violated the Administrative Procedure Act,” where federal agencies are subject to give notice and allow public comment on agency actions.

Now, “accused students have begun to sue universities in court” and “they’ve so far proven to be an uphill battle for plaintiffs.” But, Harris sees important trends emerging that could benefit future plaintiffs on the state court level. At the state court level, universities have seen their defenses dismantled and defeated, but it is much harder to win at the federal level. In federal cases, plaintiffs must prove sex discrimination under Title IX, how university procedures “violated their due process rights” and a breach of contract. In Harris’s own words, “The big challenge for these plaintiffs that they actually have to [present] gender bias” and show there is “a bias against male students.”

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