The Concept of Due Process

Under the social contract, each society must determine what “processes” they will employ when a fellow citizen is accused of wrongdoing. Will they employ steps that first and foremost protect the accused citizen’s status as an innocent person or will they employ steps that first and foremost protect public order and ensure that transgressors are duly held accountable.

Thus, a society could create a system wherein all guilty people are condemned and where sometimes innocent people suffer for a crime they did not commit. A system could be designed where it is difficult for an accused person to mount any kind of effective defense against the charges brought against them. Guilty people would be easily convicted, there would be few cases where victims did not get justice. The cost, of course, being that many innocent people would also likely be subject to conviction and its attendant punishment.


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Alternatively, we could design a system wherein wrongly accused persons are almost always let free and sometimes guilty people are not held accountable for their conduct. In such a system the job of the state is difficult. It is forced to create such a strong case against the accused person that any problem in the prosecution’s argument may be enough to allow the accused to escape punishment. This allows for the possibility that smart or lucky criminals will get away with crimes and victims are left without justice. Of course, as a result, one who is innocent will likely not have to endure the consequences of an unjust conviction.

It is worth noting many societies have chosen the former over the latter. We are not here to discuss cultural differences in justice systems but to remark on the fact that in the United States we have decided it is better for guilty people to sometimes go free rather than have unlucky innocents punished. As we all recognize, and some high profile cases come to mind, this can certainly be frustrating and can be especially difficult for a crime victim, but that is the price we have long accepted as a society.

To ensure that the goals of our American justice system are carried out, we have enacted rules and procedures that the government must follow before depriving a person of life, liberty, or property. These rules and procedures, and the need to follow them constitute the procedural due process rights we are entitled to under the U.S. Constitution.

In the Title IX arena, publicly supported schools are required to provide students with “procedural due process” in connection with serious disciplinary matters because they are state actors subject to the mandates of the U.S. Constitution and its state equivalent. Private institutions, even though subject to Title IX, are not state actors and are not mandated to provide their students with “due process” in connection with campus disciplinary matters. They are, however, required to provide their students with whatever “rights” and “procedures” they promised in their disciplinary/student conduct guidelines under a contract theory.

Although it is true that investigations under Title IX cannot result in a person’s imprisonment and that a finding of guilt does not rise to the level of a criminal conviction, the Title IX process still wields immense power over the lives of those accused and implicates liberty and property interests that our constitution holds sacred. In many cases, due process considerations are downplayed by universities because they find the rights of the accused a hindrance to the goals of providing an egalitarian learning environment. They often view the process by which accused students are adjudicated for serious allegations of campus misconduct as a “learning experience” and nothing more substantial. The reality is that the effects of a wrongful conviction are far greater for the accused than an unpleasant learning experience.

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