Campus Due Process Act

Introduction

Higher education institutions now routinely violate due process in the conduct of their disciplinary procedures. No other liberties can stand without due process. Citizens cannot maintain their freedom in our courts without due process and faculty and students cannot preserve their intellectual freedom in the universities without due process. Title IX offices pioneered the violation of due process in university disciplinary procedures, but many components of higher education institutions now violate due process. Education reformers who wish to preserve campus freedoms must provide strong due process protections in the universities.

Our model bill requires public universities to guarantee a wide range of due process procedures (Section A). It also reforms Title IX offices by requiring Title IX Responsible Employees to possess substantial experience in criminal defense and in the courtroom. Responsible Employees with this experience should value defendants’ due process rights more highly than do existing Title IX Responsible Employees. Our model bill reinforces these provisions by providing for disciplinary sanctions for their violation (Section B) and by requiring the public universities to publicize both the provisions of this law and violations of the law by anyone under their jurisdiction (Section C).

Higher education administrations cannot be trusted to enforce this act, unless 1) an independent official is present on campus to enforce compliance; and 2) state policymakers can threaten credible budgetary sanctions for noncompliance. Proper enforcement of this model bill therefore requires the passage of the Ombudsman Act and the College Finances Act.

Model Legislative Text

Section A [“Due Process Charter”]

The {Board of Regents} of the {State} public university system, and each institution of higher education that receives state funding, shall develop and adopt a due process policy that states, at least, the following:

1. Each institution of higher education will affirm and guarantee to all faculty, staff, and students subject to its disciplinary procedures all the constitutional rights of due process, with exceptions only accorded if they are necessary to achieve a significant institutional interest, and if these exceptions are clear, in writing, and justified by a written explanation.
2. Each institution of higher education will affirm and guarantee that it will establish adjudication procedures for faculty, staff, and students with strict adherence to due process protections, including but not limited to:
   1. the presumption of innocence,
   2. the clear and convincing evidence standard,
   3. the right to counsel,
   4. the right to be told when a spoken conversation pertains to a disciplinary process,
   5. the right to record all spoken conversations pertaining to a disciplinary process,
   6. the right to know what one is charged with,
   7. the right to know of all existing allegations received by college administrators,
   8. the right to access all evidence including exculpatory evidence,
   9. the right to clearly and precisely worded definitions of misconduct that follow those used in the {State} judicial system,
   10. the right to clearly defined statutes of limitations,
   11. the right to live hearings where both accusers and witnesses can be questioned (cross-examined), and
   12. the right to speak publicly about any case.
3. Each institution of higher education must refer all reported felonies immediately to the local police.
4. Each institution of higher education must establish “double jeopardy” protections in its adjudication procedures.
5. Each institution of higher education must require any employee deemed a “Title IX Responsible Employee” to have been employed for at least five years in a job where at least 50% of hours worked consisted of criminal defense, and to have substantial courtroom experience.

Section B [“Disciplinary Sanctions”]

Each institution of higher education shall implement a range of disciplinary sanctions for anyone under its jurisdiction who substantially interferes with the due process rights of others.

Section C [“Public Information”]

1. Each institution of higher education shall inform all students and employees of the protections afforded to them by the Campus Due Process Act, and of the policies it has developed and adopted to put the Campus Due Process Act into practice; the institution shall post this information prominently on its website, include it in information given to new employees, and provide it to each student during New Student Orientation. The information posted on the institution’s Internet website must be accessible from the institution’s Internet website home page by use of not more than three links; searchable by keywords and phrases; and accessible to the public without requiring registration or use of a user name, a password, or another user identification.
2. Each institution of higher education shall post prominently on its Internet website, and deliver to the {Board of Regents} of the {State} public university system, an annual report of all violations of the Campus Due Process Act committed by anyone under its jurisdiction and of all consequent disciplinary sanctions. The information posted on the institution’s Internet website must be accessible from the institution’s Internet website home page by use of not more than three links; searchable by keywords and phrases; and accessible to the public without requiring registration or use of a user name, a password, or another user identification.

Section D [“Severability”]

If any provision of this chapter, or the application of any provision to any person or circumstance, is held to be invalid, the remainder of this chapter and the application of its provisions to any other person or circumstance shall not be affected thereby.

Existing State Statutes

Arizona: HB 2563 (2018) [Relating to Students’ Rights]

Arkansas: A.C.A. § 6-60-109 [Right to counsel]

Florida: HB 233 (2021) [An act relating to postsecondary education]

North Carolina: N.C. Gen. Stat. Ann. § 116-40.11 [Disciplinary proceedings; right to counsel for students and organizations]

North Dakota: N.D.C.C. 15-10-56 [Disciplinary proceedings – Right to counsel for students and organizations – Appeals]

The National Association of Scholars, in consultation with other supporters and friends of the Civics Alliance, drafted these model bills to translate into legislative language the principles in the Civics Alliance’s Civics Curriculum Statement & Open Letter. Just as these bills have been drafted with the expectation that different states will modify them as they see fit, they also have been drafted with the expectation that not every supporter of the Civics Alliance will endorse these bills or every part of them. Individual Civics Alliance signatories and supporters should not be assumed to have endorsed these bills, unless they say so explicitly.