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On Monday, Senators Claire McCaskill of Missouri and Richard Blumenthal of Connecticut led the third in a series of roundtable discussions on how colleges and universities handle allegations of sexual assault and what changes might be made to better protect campus communities. As with the first two discussions, failed to include even a single civil liberties advocate to raise the issues of accused students’ due process rights. As a result, the conversation lacked a serious discussion of students’ rights to a fair hearing.

Let’s take a look at some of the conversations from Monday afternoon that should cause concern for due process advocates.

Minimal Standards for Due Process

At around the one hour and 14 minute mark of the video linked above, Senator Blumenthal emphasizes that a finding that a student has committed sexual assault—even by a campus judiciary, rather than a criminal court—can be life-changing. In light of that fact, he asks what lawmakers can do to ensure that students’ due process rights are respected. FIREcommends Blumenthal for asking this critically important question.

The disturbing response to Senator Blumenthal by Georgetown Law Research Fellow Nancy Chi Cantalupo is a must-see for anyone who cares about due process rights. Cantalupo begins by arguing that the Supreme Court and other courts have established a low standard for due process in the context of public school disciplinary hearings, and that private universities, since they are not state actors, do not even have to offer these most basic due process protections so long as they “follow their own procedures.”

Cantalupo describes the fact that universities are required to provide only “quite minimal” due process in comparison to criminal courts as “critical,” because it “makes it possible for schools to put the complaining student and the responding student on an even playing field,” unlike in the criminal justice system. But to have a truly “even playing field,” college judiciaries would have to dispense even with a presumption of innocence for the accused. Regardless of whether Cantalupo would actually support such a step or whether her arguments simply create a slippery slope towards that ultimate end, this is a dangerous line of argument.

Cantalupo argues later that accused students are entitled only to “notice and a right to be heard,” and stresses that this is a low bar for institutions to reach. But the Supreme Court explicitly noted in , 419 U.S. 565, 584 (1975) that while “notice and a right to be heard” are required for a “short suspension” in the high school context, safeguards should become more robust as the potential ramifications for the student to be disciplined increases. The Court wrote:

We should also make it clear that we have addressed ourselves solely to the short suspension, not exceeding 10 days. Longer suspensions or expulsions for the remainder of the school term, or permanently, may require more formal procedures. Nor do we put aside the possibility that, in unusual situations, although involving only a short suspension, something more than the rudimentary procedures will be required.

If the life-altering consequences of being expelled from a university and branded a rapist do not qualify as circumstances that warrant more formal procedures with greater due process protections, it is unclear what might. It is unconscionable to argue, as Cantalupo seems to, that simply because a punishment by the state doesn’t involve jail time, it requires only de minimis due process.

Cantalupo’s blithe dismissal of Blumenthal’s important concerns also demonstrates a remarkable lack of appreciation for the reality of how campus sexual assault hearings are often conducted. Many colleges and universities are not providing students with a “right to be heard” in any meaningful sense. Obtaining only a cursory statement from the parties and ignoring relevant exculpatory evidence should not be acceptable in a society that values fundamental fairness, even when the potential punishment is less than expulsion. Yet an increasing number of cases are being brought to light in which students allege that their institution refused to consider exculpatory evidence. Recently, for example, FIREreported on the case of a student whom Occidental College expelled for an alleged sexual assault, despite text messages indicating that the complainant was not incapacitated and put forth considerable effort towards having sex with the accused student. Was that student meaningfully “heard” when this evidence was disregarded?

Missouri State University Dean of FIREMike Jungers agreed with Cantalupo and spoke approvingly of streamlining proceedings by “melting away” potential obstacles like accused students “lawyering up.” With a less adversarial model, he says, students cooperate because they know institutions “don’t have a particular outcome that [they]’re searching for.”

But even assuming that many campus administrators are trying to do the right thing, there are certainly plenty of others who have either swept accusations under the rug or, alternatively, have rushed to judgment against an accused student in an effort to protect the university’s interests. Universities hardly have a spotless record on this account.

FIRE is not alone in our concern that administrators often inject their bias into the process. Consider recent remarks by Brett Sokolow, president of the National Center for Higher Education Risk Management and an opponent of FIREon some issues. earlier this month, Sokolow has acknowledged the significant effect that recent guidance from the federal government has had on colleges and universities adjudicating sexual misconduct:

He believes that the rising number of complaints from men [alleging that colleges mishandled accusations against them] stems in part from increasing pressure on colleges to hold students responsible for sexual misconduct, and the mistaken belief among administrators that this means they should find more young men responsible. “All of this pressure from the White House and OCR has been communicated, and these university panels believe they are supposed to vote a certain way now,” says Mr. Sokolow. “Campuses are saying, We have to comply with Title IX, so we have to side with the victim.”

Institutional bias aside, Jungers’ relief at not having lawyers present should raise a red flag. Legal advocates will help both the accused and the accusing students make their best cases, which in turn will increase both students’ confidence in these proceedings and the integrity of the verdict eventually reached. Moreover, anything an accused student says can be used against him in a criminal court proceeding, so having a lawyer will help ensure the student does not unknowingly waive Fifth Amendment rights. It’s alarming that Jungers considers a student’s interest in a fair, reliable hearing to be secondary to an administrator’s interest in efficiency—and that this was the only viewpoint represented by roundtable participants.

Consent and Incapacitation

Around an hour and 25 minutes in, Senator McCaskill raises the issue of incapacitation and consent, suggesting that states should address the distinction between mere intoxication and inability to consent. As panel members note, that line is drawn differently both from state to state and from institution to institution. Around an hour and 48 minutes into the discussion, the panelists return to this issue. McCaskill suggests developing “a model state statute on consent” in order to clarify when a person should be considered unable to consent.

It is indeed important that the boundaries of when a person can consent be clarified. Jennifer Gaffney of the New York County District Attorney’s Office observed that at some institutions, students are deemed unable to consent “if they are intoxicated to the point where they are not making a rational decision.” Rationality, however, cannot be the touchstone of incapacitation. Many factors aside from drugs and alcohol impact one’s ability to make decisions—stress levels and peer pressure, to name just two. But few would argue that a student stressed about finals was incapacitated and therefore unable to make decisions or choices about his or her life.

Moreover, intoxication and incapacitation must not be conflated. Again, as the current controversy at Occidental College illustrates, students can be both drunk and aware of what is happening to them at the same time. Interestingly, Occidental College’s written sexual misconduct policy contains a sufficiently precise definition of “incapacitation”:

Incapacitation is a state where an individual cannot make an informed and rational decision to engage in sexual activity because s/he lacks conscious knowledge of the nature of the act (e.g., to understand the who, what, when, where, why or how of the sexual interaction) and/or is physically helpless. ...

Incapacitation may result from the use of alcohol and/or drugs. Consumption of alcohol or other drugs alone is insufficient to establish incapacitation. ...

Evaluating incapacitation also requires an assessment of whether a Respondent knew or should have known, [sic] that the Complainant was incapacitated.

Occidental, however, disregarded its written definition and instead concluded that the accuser in that case was unable to consent in part due to her claim that she was doing things she wouldn’t normally have done while sober. This conclusion was reached despite text message evidence that the accuser appreciated the nature and consequences of her decision to have sex.

For another example of colleges conflating intoxication and incapacitation, Duke University implemented a sexual misconduct policy in 2010 stating that intoxication, to any degree, renders students unable to consent to sexual activity. Regarding that provision, we wrote: “Duke has turned mutually consensual sexual conduct, which might merely be poorly considered, into a punishable act. Adding to the confusion, if both parties are intoxicated at all, both are guilty of sexual misconduct, since neither can officially give consent.” These sorts of policies all but guarantee unjust outcomes and selective application, and institutions must be careful to avoid recognize the important distinction between intoxication and incapacitation to avoid these results.

A model state statute on consent could indeed be helpful, but only if it establishes a reasonable and practical standard for incapacitation.

Using a Single Investigator System and Eliminating Cross-Examination

Several panelists, including Jungers and Jessica Ladd-Webert, Victim Assistance Director at the University of Colorado, Boulder, advocated for a single investigator on campus to handle sexual assault cases. Ladd-Webert called that model “victim-friendly” and said that many alleged victims will feel more comfortable knowing that they need to speak only with one person, rather than telling their story to a panel of administrators and peers. Cantalupo also suggested that even with models that use a hearing panel, “you can set up your proceedings so that no one cross-examines anyone else.”

It may be easier for institutions to properly train a single investigator rather than a group of administrators in order to conduct a thorough and fair investigation, and accusers might feel more comfortable speaking to one person rather than a panel. However, this model—particularly as Cantalupo would have institutions implement it—threatens due process in ways that cannot be ignored.

As FIREPresident Greg Lukianoff wrote in response to the White House Task Force to Protect FIREFrom Sexual Assault’s first report back in April, under the single investigator model, “a sole administrator would be empowered to serve as detective, judge and jury, affording the accused no chance to challenge his or her accuser’s testimony.”

Many campus sexual assault cases ultimately come down to the question of which party, the accused student or the accuser, is more credible. These cases often involve little or no concrete evidence, and determinations must be made almost entirely upon the competing accounts of the two parties. Of course, the difficulty is compounded because of the mandate issued by the Department of Education’s Office for Civil Rights in its April 4, 2011, “Dear Colleague” letter, requiring colleges to determine guilt based on a preponderance of the evidence (50.01% certainty) standard. Given these constraints, each party’s ability to challenge and respond to the other party’s allegations is essential.

Responding to the White House Task Force’s enthusiasm for a “single investigator” model, attorneys Matt Kaiser and Justin Dillon further argued in an that an investigator may be influenced by a conflict of interest:

The task force’s recommendations would double down on this system. It praises the so-called single-investigator model in which a solitary “trained” investigator would handle the entire investigative and adjudicative process. In other words, one person—presumably paid by the university, whose federal funding may be at stake if the government says the institution has contravened Title IX—will effectively decide innocence or guilt. There is a name for a system like this, and it is Javert.

Both the lack of an interactive element in questioning and the potential for biases to sway a single person responsible for adjudicating a case make the single investigator model dangerous for students accused of sexual misconduct.

Drafting Legislation

McCaskill, Blumenthal, and other lawmakers will now work together to draft legislation to address the issue of sexual assault on college campuses. McCaskill stated during Monday’s roundtable discussion that after an initial draft is released, there will be plenty of opportunities for comment as the legislation is developed further.

FIRE hopes that in spite of the serious concerns raised by comments made in this roundtable, the bill will ultimately incorporate the necessary procedural safeguards for students accused of sexual assault. We plan on submitting further comments when a draft is released.