Colleges cannot expel or discipline students without providing them a forum to hear the charges and defend themselves. Civil libertarians, however, are claiming that college campus disciplinary hearings and other processes, such as federal administrative hearings, lack due process and do not protect a student’s constitutional rights, according to critics.
College students are not immune from accusations of criminal conduct. Drug offenses and underage drinking are well-known activities on college campuses. More recently, campus sexual misconduct charges are being pursued more vigorously under federal Title IX requirements.
Due process guarantees have dropped in these proceedings. Before 2011, colleges usually required proof by “clear and convincing evidence,” and some institutions relied on the “beyond a reasonable doubt” standard used in criminal trials.
The U.S. Department of Education, however, informed colleges in 2011 that the lower “preponderance of evidence” standard must be used. This is often referred to as the “more likely than not” or “51 percent” rule.
Additionally, the confrontation clause may not be enforced in these hearings. Parties have lacked the ability to cross-examine witnesses and accused students could not compel witnesses to appear. Whatever procedural rules that exist are not always used.
Other procedural defects include the absence of impartiality, because of the judge and the investigator being the same person, or at least members of the college administration. Accused students have not received information on the specifics of the allegations made against them. The important right of having an attorney has also been denied.
These proceedings can jeopardize a student’s college education and even professional career. Faculty accused of these offenses also face these consequences, while colleges who act unreasonably face the risk of costly civil lawsuits. Students accused of these offenses and facing disciplinary proceedings will want to get the right information about their options to assure that their rights are protected and that unreasonable shortcuts are not used in their proceedings.