Do NH colleges and universities need a due process law?

Many of the debates around campus sexual assault in New Hampshire have focused on protecting victims and punishing perpetrators, but state Rep. Bob Lynn (R-Windham) sees the issue through a different lens. He’s concerned about the rights of the accused. Now the New Hampshire House of Representatives is debating a bill that would require detailed due process rights for students, faculty, and student organizations accused of misconduct at public colleges and universities.

Is there a problem with campus justice in NH?

In 2020 Gov. Sununu signed a bill aimed at fighting sexual assault on college campuses. Students and advocates praised the new policy and reporting requirements, but the issue of campus sexual assault was hardly eliminated. Just a year later students protested outside the home of UNH President James Dean over the university’s response to a sexual assault on campus. Students wanted to know what the university was doing to protect them from an alleged rapist; university officials stressed the importance of protecting the identity of both victim and perpetrator until they completed their investigation and disciplinary process.

The 2021 incident is probably the most well-known clash between the rights of accused and accuser on a college campus in New Hampshire. Rep. Lynn, the prime sponsor of this year’s bill on campus due process, does not have any specific stories or examples of New Hampshire colleges violating students’ due process rights. However, he speculates that if a student was disciplined for an alleged sexual assault or other offense, they might not want to draw attention to that finding, even if they believe the process was unjust.

Rep. Lynn explained his perspective at a recent committee work session: “Even though this is, you know, an education proceeding, as opposed to like a criminal trial or even a civil lawsuit, the consequences of that can be really significant. I mean, somebody, you know, particularly take the example of sexual assault, somebody is accused of having sexually assaulted somebody and let’s assume it doesn’t go to a criminal case or a civil case, but there’s been a finding made, that that happened, that could have very, very significant consequences to somebody’s life later on.”

Bill to put due process requirements in law

HB 1288, Rep. Lynn’s bill, would apply when a student or faculty member faces suspension, expulsion, or termination. The law would also apply when a student organization is at risk of losing privileges on campus.

The law would give about a dozen rights to the individual or organization facing discipline, including a right to a hearing with an impartial officer or panel, copies of evidence at least five days before the hearing, the right to cross examine witnesses, and so on.

If there is an imminent threat of physical injury or property damage, the college or university could take some emergency actions before the hearing. However, if there were criminal charges or a protective order, the college or university would not be allowed to move forward with disciplinary proceedings until the criminal process is finished.

Similarity, potential conflicts with current campus policies

The university and community college systems currently provide students with varying due process rights depending on the severity of the offense. The most serious cases, those which could result in a suspension or removal from school, go through a formal hearing process similar to what is outlined in HB 1288. There were about 80 of those cases in the state university system last year.

However, the due process requirements in HB 1288 are more robust than what UNH and the community college system currently require. The university system estimated it would cost at least $500,000 more a year to hire and train staff to implement HB 1288. The community college system estimated costs around $380,000 per year.

Representatives from the university and community college systems are also concerned that HB 1288 may conflict with federal law, particularly Title IX. That law protects students from sex discrimination. The Biden administration released guidance on Title IX that requires colleges and universities to act quickly on allegations of sexual assault and harassment. However, HB 1288 would require campus officials to hold off on final disciplinary actions until any criminal process is complete, which sometimes takes years. That seems to conflict with the guidance on Title IX to act quickly, opening state universities and colleges to lawsuits—and, potentially, a loss of federal funding.

HB 1288 does allow some temporary, emergency actions for serious cases, such as rape. However, some federal courts have ruled that interim actions, such as temporary suspension pending a criminal investigation, are not allowed.

The university and community college systems also have collective bargaining agreements with faculty that govern discipline. The requirements in those agreements are likely to duplicate and/or conflict with the processes laid out in HB 1288.

Final pros, cons for due process bill

Besides the debate over costs and federal requirements, bill supporters and opponents are particularly focused on one part of the bill: the right to cross-examination. Rep. Mike Belcher (R-Wakefield) spoke for supporters when he wrote, “in testimony it was suggested by college representatives cross examination is prohibited in some cases despite it being a fundamental practice of due process as enshrined in the Bill of Rights, and dating to time immemorial, to be found even in Proverbs 18:17. … There is a broad perception that the university environment is unfriendly to certain accused. This bill seeks to correct that.”

Bill opponents counter that allowing an alleged rapist to cross-examine their accuser is unfair and potentially traumatizing for sexual assault survivors. Rep. Linda Tanner (D-Georges Mills) wrote in a committee report, “Provisions in this bill, such as allowing cross-examination by the accused in an open meeting without the guardrails afforded in an official court trial, may cause life-threatening trauma to the victim and cause more victims to not seek help or report assaults.”

The House passed HB 1288 on February 22, then sent the bill to the Finance Committee to review its potential impact on the budget. The House Finance Committee recently voted 13-12 in favor of the bill. The bill will get a second vote in the full House April 11. It will likely be a very close vote. If you have an opinion on HB 1288, reach out to your state representative. You can find who represents you here. Want tips on what to say and how to reach out? Check out our Advocacy Toolkit.