Jenna Robinson writes for the Martin Center about efforts to boost college students’ due process protections. She says North Carolina’s Students and Administration Equality Act is serving as a national model.
The SAE Act guarantees students and student organizations at public colleges and universities the right to counsel when they are accused of violating their institutions’ disciplinary or conduct rules. It also mandates that the institution report the number and type of disciplinary proceedings it initiates.
Joe Cohn, legislative and policy director at the Foundation for Individual Rights in Education, has said of the SAE Act, “[It] is sorely needed because today’s colleges and universities operate what amounts to their own parallel justice system, albeit without the meaningful due process protections provided in our nation’s courts.”
During the first six months after the Act was passed, 119 students across the UNC system chose to have legal representation at disciplinary hearings. Such choice was generally impossible before the passage of the Act.
One reason that states are moving to protect due process comes from the U.S. Department of Education. In April 2011 the Department’s Office for Civil Rights issued a now-infamous “Dear Colleague Letter” instructing colleges and universities to use the lowest possible standard of proof in sexual assault cases. This “preponderance of evidence” standard means that accusers need only prove that a particular fact or event was slightly more likely than not to have occurred. This is far different than proving something “beyond a reasonable doubt,” which is standard in criminal cases outside a university campus.
Secretary of Education Betsy DeVos signaled earlier this month that she plans to revisit OCR’s sexual assault regulations. But until then, the “Dear Colleague Letter” guides campus action. In addition to changing evidentiary standards, the letter discourages cross-examination of accusers, strongly suggests that institutions accelerate adjudications to take place within a 60-day limit, and allows accusers to appeal not-guilty findings. The possibility of appeal for accusers subjects defenders to a kind of “double jeopardy” not allowed in criminal cases.
It is in this environment that other states have moved to follow North Carolina by passing their own due process protections. Arkansas and North Dakota have passed legislation similar to the SAE Act, and legislators in Massachusetts and Virginia have proposed similar policies.
