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Thu May 1, 2014
Due Process, Clarity Suffer As Feds Tackle Campus Sexual Assault
On Tuesday, the White House Task Force to Protect Students from Sexual Assault unveiled its first report. Created after a record number of complaints filed by students against universities about their handling of sexual assault on campus, including complaints against Harvard and Tufts, the task force made recommendations to colleges on how they can better prevent and address sexual harassment and assault. Unfortunately, students’ rights to due process and fundamental fairness have been lost in the shuffle.
One of the first questions many people ask on this issue is, “Why are colleges holding rape trials anyway?” Good question. They do so because they are required to under Title IX, the 1972 federal law banning sex discrimination in educational programs. But don’t bother looking at the text of Title IX, which makes no mention of rape hearings at all. The requirement instead comes from mountains of federal regulations and piecemeal statutes that hold colleges to standards that are nearly impossible to meet or even comprehend.
Tufts is currently finding this out the hard way. The university came to a voluntary agreement with the Boston office of the Department of Education’s Office for Civil Rights (OCR, the agency tasked with enforcing the statute) on April 17 over how to remedy past Title IX problems. But just days later, the Washington OCR office told Tufts that its new policies also failed to comply with Title IX.
That’s when Tufts did something unprecedented — it withdrew from the voluntary agreement and issued statements loudly condemning OCR’s move. Tufts issued a statement saying that OCR’s new finding “has no basis in law,” while President Anthony Monaco said he was willing to sign a new agreement only on the condition that OCR “is very clear about what we have to improve.”
Unfortunately for Monaco, that may prove impossible. The government’s latest effort to “clarify” the issue consisted of the task force’s 23-page report, a new website at NotAlone.gov, a 37-page template for “campus climate surveys,” a sexual misconduct policy checklist, a sample confidentiality policy, and, to top it off, a 53-page guidance document from OCR that is supposed to help explain how to apply the 47-page “blueprint” for sexual misconduct procedures promulgated last year as well as the 19-page “Dear Colleague” letter about the subject from 2011. And more documents are promised soon.
While it’s nearly impossible to follow all of these vague, confusing, and sometimes conflicting regulations, the parts that are clear are in many cases very alarming to civil liberties advocates or, indeed, anyone who believes in the principle of “innocent until proven guilty.” Foremost among the demands since 2011 is that colleges use the “preponderance of the evidence” standard of proof for adjudicating sexual misconduct accusations — a 50.01 percent likelihood standard that is our nation’s lowest. (In real courts, rape must be proved “beyond a reasonable doubt,” a 98-99 percent likelihood standard.)
This low standard is then used in a disciplinary procedure where students nearly always lack lawyers, no legally trained judge oversees the process, testimony is not under oath, hearsay is freely considered, relevant evidence or even proper notice of the charges may not be given to both parties, students may be forced to incriminate themselves, and whatever “jury” is empaneled may not be of one’s peers.
The task force report from Tuesday actually encourages colleges to make this situation worse. Perhaps recognizing that college hearings are delivering shoddy justice, the task force speaks highly of moving to a “single investigator” model that would entirely dispense with niceties like “hearings” or “the ability to face one’s accuser” by appointing one administrator to act as detective, judge, and jury for campus crimes. It’s difficult to see how this medieval model of campus justice would be more likely to produce just and reliable results.
Rape is perhaps the most serious felony other than murder. Whether one in five women on campus are victims of rape (as the White House claims) or the figure is more like 3 percent (as another study suggests) makes little difference as far as real justice is concerned. Serious crimes call for serious procedures and the consistent involvement of law enforcement professionals. Both victims and those accused on campus deserve better than what they’re getting now — or what they’re likely to get as a result of the White House task force’s report.
Robert Shibley, an attorney, is Senior Vice President of the Foundation for Individual Rights in Education (FIRE).