A new report asserts that among the top 53 universities in the country, as ranked by U.S. News & World Report, 73% do not guarantee students they will be presumed to be innocent until they are found guilty.
The Foundation for Individual Rights in Education (FIRE) surveyed the universities, and found a shocking lack of respect for due process. Among their findings they found that almost half of the schools did not hold that fact-finders should be deemed impartial; 52.8% required that these fact-finders, who often act as the arbiters of the case at hand, be impartial.
Additionally, only 30.2% of the universities assured a hearing in which each party could witness the evidence presented by the opposing party. A whopping 47 of the 53 universities surveyed got a D or F grade from FIRE for at least one disciplinary policy; that meant they did not offer more than 4 of the 10 elements of a fair procedure that FIRE rated. FIRE added, “86.8% of rated universities receive a D or F for protecting the due process rights of students accused of sexual misconduct. Of the 104 policies rated at the 53 schools in the report, not a single policy receives an A grade.”
The 10 elements that FIRE considered necessary for a fair trial included:
1. A clearly stated presumption of innocence, including a statement that a person’s silence shall not be held against them.
2. Timely and adequate written notice of the allegations before any meeting with an investigator or administrator at which the student is expected to answer questions.
3. Adequate time to prepare for a reasonably prompt disciplinary hearing.
4. The right to impartial fact-finders, including the right to challenge fact-finders for conflicts of interest.
5. The right to a meaningful hearing process.
6. The right to present all evidence directly to the fact-finder.
7. The ability to question witnesses, including the complainant, in real time, and respond to another party’s version of events.
8. The active participation of an advisor of choice, including an attorney (at the student’s sole discretion), during the investigation and at all proceedings, formal or informal.
9. The meaningful right of the accused to appeal a finding or sanction.
10. A requirement that factual findings leading to expulsion be agreed upon by a unanimous panel or supported by clear and convincing evidence.
FIRE added, “In addition to these guidelines for awarding points, FIRE has placed an asterisk by institutions whose policies grant an administrator or judicial body discretion to have a case adjudicated through a different, less protective procedure, or to not follow written procedures, without clear guidelines as to how such a decision may be made. “
FIRE acknowledged, “Where institutions maintain different policies for cases involving alleged sexual misconduct and other cases, we analyzed both sets of policies.”
According to the survey, the universities that exhibited the fairest system were the University of North Carolina at Chapel Hill, Cornell University, the Georgia Institute of Technology, Stanford University, and the University of Virginia. Significantly, Harvard and Yale Universities ranked near the bottom of the list.