Samantha Harris of the Foundation for Individual Rights in Education (FIRE) argued the case for ensuring that the process for handling sexual misconduct on America’s campuses is fair to everyone involved during a recent presentation at the University of Delaware.

Harris, FIRE’s director of policy research, delivered the fall 2016 David Norton Memorial Lecture titled “Due Process and Sexual Misconduct on Campus” on Friday, Sept. 16, in the Gore Recital Hall of the Roselle Center for the Arts.

Since 2011, Harris said, more than 120 students across the nation have brought lawsuits alleging they were denied due process and fundamental fairness in campus sexual assault proceedings.

In each case, she said, students bringing suits alleged that they were found guilty without a fair hearing, or with no hearing at all.

Title IX

Harris said the principal force driving how universities handle cases of sexual misconduct has been Title IX, which prohibits sex discrimination at institutions receiving federal funds.

The answer to what it means to be subjected to discrimination, she said, has expanded over the years by court decisions and guidance from the Office for Civil Rights, which oversees Title IX enforcement.

She said things changed markedly in the fall of 2010 when the federal government adopted a more aggressive stance toward the enforcement of Title IX.

A 19-page “dear colleague” letter issued in 2011 by the Office for Civil Rights mandated that universities use a “preponderance of evidence” (more likely than not) standard when deciding claims of sexual harassment and sexual violence, Harris said.

She added that the Office for Civil Rights also began dramatically increasing the number of schools it was investigating over their handling of sexual assault.

“In May 2014, the Office for Civil Rights went public with a list of schools under investigation,” Harris said. “At the time, there were 55. As of June 15, 2016, there were 195 schools under investigation.”

(Editor’s note: In 2014, the Office for Civil Rights opened an investigation into the University of Delaware. That investigation is still in progress.)

Harris said she thought pressure from the Office for Civil Rights has resulted in many schools adopting policies that she thinks go far beyond what is actually required under Title IX. 

She called the result “unfair to students accused of serious wrongdoing,” and added that she thought it also “has harmed victims by undermining the reliability of the process.”

For the future

Harris said she feels there is a lot that universities can do to make the adjudication of sexual misconduct claims fairer for everyone involved.

One of the most critical things schools can do to assure fair process, Harris said, is to allow both parties the option of active representation by an attorney or advocate. She also said she believes students accused of serious wrongdoing should have an actual hearing process.

Finally, Harris suggested that schools need to address the underlying campus climate leading to all complaints of sexual misconduct, including changing the hard-partying, binge-drinking culture that exists on some college campuses.

She also called for open discussion where sensitive or controversial topics can be talked about without making attacks and judgments on those holding opposite views.

“We need to be able to listen to someone talk about the rights of the accused without labeling them a rape apologist, and we need to be able to listen to someone talk about rape culture without dismissing them derisively as a social justice warrior,” Harris said. “Only then do we have a meaningful shot at crafting solutions that are fair and respectful of everyone involved.”

The lecture was sponsored by the David Norton Memorial Fund honoring the late UD philosophy professor, the Makiguchi Foundation, the Class of 1955 Ethics Endowment Fund and the American Philosophical Association.