Students Want Due Process -- With Limited Rights in Sexual Misconduct Cases

College students support due process rights in campus disciplinary hearings, but they are less supportive when it comes to matters of sexual misconduct, according to survey results from the Foundation for Individual Rights in Education released today.

Working in conjunction with YouGov, a global public opinion and data company, FIRE surveyed 2,225 undergraduates at two- and four-year institutions about students' rights to due process protections, such as the presumption of innocence or the right to have an adviser present during hearings. Participating students were asked whether or not they supported each protection while considering one of three scenarios: breaking a campus rule, underage drinking or sexual misconduct.

Ninety-eight percent of students said they believe the right to due process in college was “very important” or “important.” For every protection except one -- the right of the accused to make copies of evidence in a sexual misconduct case -- a majority of students supported the protections. Despite that majority, the sexual misconduct scenario yielded lower student support in almost all categories. When considering a sexual misconduct case:

• 80 percent support the presumption of innocence, compared to an average of 85 percent of respondents across all three scenarios.
• 48 percent support the right to make copies of evidence, compared to 60 percent over all.
• 68 percent support cross-examination, compared to 75 percent over all.
• 72 percent support a unanimous decision required for expulsion, compared to 78 percent over all.

As to why this might be, Samantha Harris, vice president of policy research at FIRE, said that a student's ability -- or inability -- to walk in the accused student's shoes could play a role in shaping their opinion.

“We all tend to support rights more or understand the need for critical rights more when we can put ourselves in a situation where we might need those rights,” Harris said. “Generally speaking, it might be easier to put oneself in the situation of being accused of breaking a rule, something general like that, than of a specific and heinous type of misconduct.”

Scott Lewis, a partner with the National Center for Higher Education Risk Management, and co-founder of the Association for Title IX Administrators, said recent events may also affect student support.

"Given the context of recent events like the Me Too movement and Times Up movement and the increase of reporting of sexual assault in particular, students are interested in more accountability," Lewis said.

Support for due process in sexual misconduct cases also varied by gender. Eighty-one percent of male students supported the right to cross-examine witnesses, compared to 64 percent of female students. Approximately 59 percent of male students supported the right to view or make copies of evidence, compared to 39 percent of female students.

"People tend to be much more supportive of rights in the abstract, but when the situation is the person whose rights are being violated is someone you disagree with, or in the case of sexual misconduct, you’re the person who is more likely to be the accuser … the support for those rights is lower," Harris said about the gender differences.

Lewis emphasized the danger of providing less protections for due process as a justification for more accountability.

"Historically, those who brought sexual assault cases forward were not given the appropriate attention," Lewis said. "Conversely, if you swing the pendulum too far the other way and you deny rights to those accused of harassment or assault, the overcorrection could result in yet another overcorrection the other way."

FIRE also examined the survey responses in relation to students' political leanings.

"When it came to attitudes towards accessing evidence, very liberal students favored a right to access evidence more than very conservative students in the instance when somebody had been accused of breaking a campus rule or drinking alcohol, and it was the opposite for engaging in sexual misconduct," Harris said. She cited the politicization of campus sexual misconduct issues as a possible cause of the differences.

The survey is particularly significant considering a 2017 study from FIRE that showed very few colleges and universities in U.S. News & World Report's top 50 institutions have any due process procedures in place at all. Of the 53 universities studied, 39 presume that a student is innocent until proven guilty, less than half require fact finders to be impartial and only one -- Johns Hopkins University -- requires a unanimous panel decision for expulsion.

Ryan C. Holmes, past president of the Association for Student Conduct Administration, noted that colleges are only responsible for carrying out the student conduct process that students agree to upon enrollment -- they do not serve as a court of law.

"Colleges and universities do not have the same authority as a criminal system, such as evidentiary or subpoena procedures," Holmes wrote in an email. "Additionally, the ultimate authority of the campus is to determine if an individual can remain a student at that institution and, if so, the best way to amend negative behaviors going forward."