When it comes to handling campus sexual assault, colleges are flunking out. Headline after headline documents this failure in depressing detail, from ignoring complainants’ allegations to trying accused students in campus kangaroo courts. In response, state and federal lawmakers have rushed to pass legislative fixes. But despite admirable intentions, these efforts double down on a broken campus system—and threaten student rights to due process and privacy.
Take the federal Campus Accountability and Safety Act (CASA), introduced in July by a bipartisan group of lawmakers including Sens. Kirsten GillibrandKirsten GillibrandDocumentary to be released on Gabby Giffords's recovery from shooting Tlaib blasts Biden judicial nominee whose firm sued environmental lawyer The Hill's 12:30 Report - Presented by Connected Commerce Council - Biden faces reporters as his agenda teeters MORE (D-N.Y.), Claire McCaskillClaire Conner McCaskillBiden, lawmakers mourn Harry Reid Harry Reid, political pugilist and longtime Senate majority leader, dies On The Trail: Trump-inspired challengers target GOP governors MORE (D-Mo.), and Marco RubioMarco Antonio RubioPut partisan politics aside — The Child Tax Credit must be renewed immediately These Senate seats are up for election in 2022 Lawmakers press Biden admin to send more military aid to Ukraine MORE (R-Fla.). CASA includes commonsense measures, like preventing colleges from allowing athletic departments to conduct separate hearings for athletes accused of sexual assault. But CASA tips the scales of justice too far towards the complainant by providing him or her with a “confidential advisor” to guide the student while leaving the accused student without any such assistance. This imbalance conflicts with guidance from the Department of Education’s Office for Civil Rights (OCR), the federal agency tasked with enforcing Title IX, which has made clear that schools allowing advisors to participate “at any stage of the proceedings … must do so equally for both parties.”
CASA’s faith in self-interested campus judiciaries stands in stark contrast to recent efforts to address sexual assault in the military. In that context, Gillibrand and McCaskill argued that only impartial civil courts could secure justice.
And CASA’s most dangerous component provides OCR with a distorting incentive to wield its enforcement power against colleges and universities. CASA would empower OCR to impose fines equal to 1 percent of an institution’s entire operating budget for each Title IX “violation or failure” it found—and to keep the money for itself. This could be crippling. Last summer, for example, OCR found the University of Montana had committed 40 Title IX violations—a staggering potential loss of $160 million under CASA. Finding a single violation at Penn State could net OCR more than $45 million; finding 40 at Harvard could net over $1 billion.
Allowing OCR to self-fund by fining institutions for violations will only accelerate the rush to judgment in campus hearings, pushing campus administrators even further towards abandoning due process altogether. Already, college attorneys have admitted that pressure from OCR has prompted unjust outcomes. The National Center for Higher Education Risk Management acknowledged in a recent open letter that in “a lot” of cases, administrators are finding accused students guilty “in spite of the evidence—or the lack thereof—because they think they are supposed to, and that doing so is what OCR wants.” It’s no wonder that more than 20 students have recently filed suit against their institutions, alleging unfair campus hearings.
Federal pressure is also causing schools to overreact in attempts to comply with the latest requirements from lawmakers and OCR. For example, just this past week, a shocking report from Campus Reform revealed that Clemson University forced students to complete an intrusive questionnaire about their sex lives as part of “online Title IX training.” Such training is mandated by the Campus Sexual Violence Act, signed into law as part of the Violence Against Women Act. A White House task force on campus sexual assault recommended conducting “campus climate” surveys, and CASA would make that recommendation law.
Clemson’s survey, which required students to log in with names and student ID numbers, included questions like “How many times have you had sex (including oral) in the last 3 months?” Students who refused to answer were threatened with discipline under Clemson’s student code for “failing to comply with an official request.” Clemson suspended the survey just hours after Campus Reform’s report. But the fact that Clemson didn’t think twice before forcing students to reveal such intimate details demonstrates just how quickly student rights can be jettisoned to appease federal agencies.
Students can expect more such intrusions soon. Yesterday, in California, Gov. Jerry Brown (D) signed into law a bill that will require students to obtain “affirmative, conscious, and voluntary agreement…ongoing throughout a sexual activity.” As critics from the Los Angeles Times, the San Francisco Chronicle, and the Orange County Register have pointed out, this so-called “affirmative consent” bill ushers government into the dorm room and shifts the burden of proof to the accused, who must now prove she or he obtained continuous and ongoing consent for each sexual activity. In The New Republic, Batya Ungar-Sargon astutely noted that the bill “proposes to declare a large swatch of normal activity criminal (drinking before sex, reading/sending signs instead of verbalizing request/consent).” Litigation will surely result as already confused administrators muddle through a sexual minefield far beyond their competence.
So what’s the way forward on campus sexual assault? Policymakers need to recognize that college judiciaries simply aren’t equipped to handle allegations of felony misconduct. Colleges can provide counseling, resources, preventative education, and academic accommodations. But they lack the procedures to reach just results and the power required to properly punish those found guilty. Instead of creating an alternative to the criminal justice system, legislators should devote their efforts to fixing law enforcement’s handling of sexual assault.
Cohn is legislative and policy director for the Foundation for Individual Rights in Education.