The Campus Accountability and Safety Act (CASA), S. 2692, seeks to change how publicly funded universities investigate allegations of sexual assault. CASA and its House version, H.R. 5354, are currently in front of congressional committees. S. 2692 in particular has been widely hailed as a rare display of bipartisan support. Why, then, does the congressional watchdog GovTrack.us give CASA only a 1 percent chance of being enacted?
The act contains some alarming provisions.
On Aug. 7, Hans Bader, a senior attorney at the Competitive Enterprise Institute, reported on one. CASA regulates how universities must approach sexual assault, including producing an annual survey of students' experiences, which will be published online. The penalties for non-compliance are massive: an initial penalty of up to 1 percent of the institution's operating budget and a potential $150,000 fine for each additional violation or misrepresentation — $150,000 per month if surveys are not completed to the standard required. Bader observed, "that [initial offense] would be a whopping $42 million for Harvard alone, since its budget is $4.2 billion."
Even worse, "a provision ... lets the money be kept by the agency imposing the fine, the Education Department's (DOE) Office for Civil Rights (OCR)." This creates a huge incentive for OCR to be aggressively punitive or to accuse innocent universities of misrepresentation or substandard compliance. Even an inability to comply would not exempt institutions from fines. For example, they are required to enter into a "memorandum of understanding" with local law enforcement. If the latter refuses, then "[t]he Secretary of Education will then have the discretion to grant the waiver." Not the obligation but the discretion.
The fines could also violate the Fourth and Fifth Amendments of the U.S. Constitution, as well as various court decisions that guarantee due process. They address the administrative aspect of justice so as to guard against its arbitrary denial by the federal government. Due process protects the right of a defendant to be heard before an impartial judge, not before a judge or bureaucracy that pockets whatever monetary punishment he assesses.
Both the fines and the expense of compliance take money away from education and could significantly increase tuition and fees. College Board, which tracks the cost of higher education, recently stated that "Average published tuition and fees at public four-year colleges and universities increased by 19 [percent] beyond the rate of inflation over the five years from 2003-04 to 2008-09, and by another 27 [percent] between 2008-09 and 2013-14." The increase is higher than any other sector of the economy.
It is not possible to accurately ascertain how much of the jump is due to the non-education-related programs, administrators, staff and paperwork that government unrelentingly heaps upon academia. Dan King, president of the American Association of University Administrators, claimed there were thousands of regulations to govern the distribution of financial aid alone. In February, the New England Center for Investigative Reporting provided details of the best figures available. "The number of non-academic administrative and professional employees at U.S. colleges and universities has more than doubled in the last 25 years, vastly outpacing the growth in the number of students or faculty. ... [F]rom 1987 until 2011-12 ... universities and colleges collectively added 517,636 administrators" even though enrollment has declined. The soaring overhead, along with a tsunami of regulations, are turning American universities into bankrupt social experiments rather centers of education.
Under CASA, each university would require more non-educational staff and spending. Among mandates in the act are "designated confidential advisors" for alleged victims, the preparation of an Annual Security Report as well as an online survey, training of all relevant staff on grievance management and forensic interviewing, and further coordination with the DOE and police departments.
Coordinating with the police raises another question with CASA and similar policies. Rape is a criminal act. Why is it being vetted by campus administrators who would never conduct a murder investigation? Both are the job of police. Why should university staff be forensically trained? The police already are, and they usually have years of experience. Yet CASA provides that universities must enter into "a memorandum of understanding [every two years] with all applicable local law enforcement agencies to clearly delineate responsibilities and share information ... about certain serious crimes that shall include, but not be limited to, sexual violence." Not limited to? Perhaps administrators will be conducting murder investigations soon.
A simple solution exists to what critics call an hysterical and politically motivated campaign about sexual violence on campus. Sexual assault is a crime. Leave it to the police. Unless, of course, the campaign is hysterical and politically motivated. Then the pile-on of regulations and federal power makes sense.
McElroy is a research fellow at the Independent Institute.