Ready, Fire, Aim: How Universities are Failing the Constitution in Sexual Assault Cases

Abstract

This article looks critically at the procedural protections American universities give students accused of sexual assault. It begins by situating these policies historically, providing background to Title IX and the different guidelines promulgated by the Department of Education. Next, it presents original research on the procedural protections provided by the 50 flagship state universities. In October 2014, university administrators were contacted and asked a series of questions about the rights afforded to students, including the standard of proof, right to an adjudicatory hearing, right to confront and cross examine witnesses, right to counsel, right to silence, and right to appeal. This Article describes findings and then compares them with prior studies. After arguing that state university students are entitled to procedural due process, the article uses the balancing test from Matthews v Eldridge to evaluate whether universities are adequately protecting the due process rights of the accused. The article concludes by considering how universities can more fairly and effectively respond to sexual assault.

Keywords: Dear Colleague Letter, Sexual Assault, Procedural Due Process, Confirmation Bias, Procedural Justice, Restorative Justice

JEL Classification: 129