Channels, Fall 2016

Kirkpatrick • Campus Sexual Misconduct Due Process Protections Page 168 and limiting their job opportunities. These life-altering consequences stem from an adverse decision by their school. For example, in one case at the University of North Dakota, a student adjudicated under the preponderance standard was suspended for three years from the institution for sexual assault despite the fact that the local police force refused to charge him with a crime and instead charged his accused for making a false claim. 20 After significant public pressure, the university eventually reversed its ruling. Georgia Tech was also recently ordered to reinstate a student expelled for alleged sexual assault. The Georgia Board of Regents is now working on a system-wide due process policy, which will allow accused students to have access to legal counsel during hearings and an appeal process. Only three other states have passed laws to that effect. 21 College tribunals act as miniature justice systems, regardless of the fact that the hearings do not actually occur in courts of law. Although universities cannot impose criminal penalties on students they find responsible for sexual assault in campus proceedings, these hearings do have a quasi-criminal nature, mainly because of the nature of the crimes they address and the penalties they impose. Generally speaking, these hearings involve an allegation, an investigation, a hearing, the presentation of evidence, a sentencing, and an appeals process. When the allegations concern sexual assault, the hearings decide whether someone committed conduct constituting a felony crime. Students found responsible in such hearings are often expelled and face serious challenges when they seek to enroll at other universities. In fact, this past January, a federal court in Kentucky ruled that such campus hearings are quasi-criminal in nature. 22 As such, students deserve the same due process rights that their counterparts in the criminal courts are afforded. Why This is a Problem The idea of due process holds that a disciplinary system must work fairly, consistently, and impartially to arrive at just results. The idea is not confined solely to the courtroom; at least it should not be if the society truly cares about fundamental fairness and justice. Some opponents argue that if a college simply follows its own policy, then it is innocent of violating any due process rights. However, if the policy is fundamentally unfair to begin with, then it follows that the finding or ruling will be as well. Policies need to provide fundamental fairness to both genders and to both the accused and the victim to avoid due process violations. All students must be treated fairly with equal access to any campus resources. 20 Victory for due process: student punished for alleged sexual assault cleared by University of North Dakota; accuser still wanted for lying to police. (2011, October 18). Foundation for Individual Rights in Education. Retrieved from https://www.thefire.org/victory-for-due-process-student-punished-for-alleged-sexual- assault-cleared-by-university-of-north-dakota-accuser-still-wanted-for-lying-to-police-2/ 21 Hagen, L. (2016, January 26). Ga. lawmakers stress due process in campus assault cases. Public Broadcasting Atlanta. Retrieved from http://news.wabe.org/post/ga-lawmakers-stress-due-process-campus- assault-cases (Arkansas, North Carolina and North Dakota have passed similar laws) 22 Doe v. Hazard , No. 5:15-cv-00300, 4 (E.D. Ky. 2016)