Massachusetts Board of Higher Education Report on Campus Safety Pays Scant Attention to Due Process

The Massachusetts Board of Higher Education, the state agency responsible for guiding public colleges in Massachusetts, has recently waded into the thorny underbrush of law, morality, politics, and public relations that is the current state of discourse around sexual assault on campus.  An existing 2014 Board Resolution declared “zero tolerance” for sexual violence on campus, and in 2016 the Board’s Commissioner established a Task Force on Campus Safety and Violence Prevention to make recommendations about campus safety in general and sexual assault in particular. The Board accepted the resulting report, “Securing Our Future: Best Practice Recommendations for Campus Safety and Violence Prevention,” at its June 14, 2016 meeting.

As attorneys whose role in campus proceedings is often to represent accused students, the question we ask when reviewing any new guidance is what implications it might have for the accuracy and fairness of fact-finding following accusations of sexual assault or harassment on campus. The sections of the report that deal with sexual assault are not groundbreaking, and will ring familiar to anyone who has already perused the reports of the White House Task Force to Protect Students from Sexual Assault and the extensive guidance that the federal Department of Education’s Office of Civil Rights has released on this issue. But disappointingly, to the extent that the report does give any guidance as to what procedures schools should follow, it appears to endorse practices that deprive students of constitutional rights and subject them to biased inquisitions without first giving them fair notice of the accusations against them.

The Report offers guidance specifically intended for the public colleges of the Commonwealth of Massachusetts—all of which, as state entities, have a constitutional obligation to provide students with due process of law before imposing discipline. Yet it provides only the most generic list of elements that it recommends that schools include in a process “to ensure its fairness and impartiality.” The list, with my commentary, follows:

• “Written notice to the accused party.” Without specifically requiring that the notice include any particular level of detail, this is unlikely to dissuade schools from the common practice of telling an accused student only the date of the incident and the name of the complainant. That practice doesn’t give a student a meaningful ability to investigate the charge, marshal evidence in his or her favor, or evaluate whether he or she faces a risk of criminal prosecution. It’s also likely a violation of the student’s constitutional due process rights; in one recent case the California Court of Appeals held that the University of Southern California had failed to provide a fair procedure where it told the accused student only the date and location of the incident, information from which he could infer the identity of the complainant, and the sections of the student conduct code he had allegedly violated.
• “Written and verbal description of the process to both parties,” and “Reminder to both parties and all witnesses of the institution’s non-retaliation and confidentiality policies.” It is important for students to understand the procedures that schools will follow, and their rights—but describing the procedures to the parties doesn’t make the procedures themselves any fairer.
• “Provision to both parties of the opportunity to select an advisor of the party’s choice.” This is a valuable right, already guaranteed by federal regulations, which allows students to have lawyers present with them in all proceedings in which they face charges of sexual assault on campus.
• “Provision to each party of the opportunity to present evidence and witnesses,” and “Provision to each party of the opportunity to review evidence provided by the other, but not to cross-examine each other.” These are the most substantive due process provisions that the Report provides. Unfortunately, they are probably insufficient to discourage schools from embracing a “single investigator” model, in which one individual (often an outside lawyer who makes a living from repeat business from schools) acts as judge, jury and prosecutor—despite another recent court decision, this time by a federal judge in the district of Massachusetts, which suggests that the model is problematic even at private schools, where students’ constitutional rights are not at stake. This recommendation does not guarantee that students will receive any form of hearing or will even be able to hear one another’s testimony, or that of witnesses, as opposed to a summary provided second-hand by the investigator. The prohibition on cross-examination – even through a third party, which is how schools would often conduct such examination – is also extremely troubling. The difference between the ability to suggest that an investigator speak to a witness, and the ability to specify which questions the witness should be asked and be present for his testimony, is significant when it comes to eliciting important information. Moreover, a number of courts have held that in some circumstances, cross-examination may be a necessary element of due process.
• “Notice of the outcome, including an opportunity to review any investigative report.” Plainly students must be given notice of the outcome—but this framing is problematic insofar as it appears to suggest that an opportunity to review a report can take place after the report is final and a decision has been made, and does not require an opportunity to respond to the report before the outcome is decided.
• “Opportunity to appeal the decision.” This is a valuable right, though often in practice schools significantly limit the grounds for appeal such that there is no meaningful avenue to challenge the decision.

In light of increased attention to—and successful litigation regarding—due process on college campuses, public universities in Massachusetts would be well advised to significantly exceed the minimal due process described in the Report to ensure they comply with federal statutory and constitutional requirements.