Combating Campus Sexual Assaults without Stacking the Deck against the Innocent

Some colleges and universities have for years come under fire, from students and critics outside the campus accusing them of having done little to address or prevent instances of sexual attacks against students– or perhaps even to have covered them up. A partial response was a federal law requiring campuses to report violent crimes; another was the federal government’s first-ever release last year naming dozens of schools where students have complained of administrative inaction.

Title IX, part of a 1972 educational law aimed at fighting sex discrimination in higher education, gives Department of Education officials powerful tools – including blocking federal funds – to recalcitrant schools. In recent years, those same officials have been drawing up new procedures they think schools should follow in handling such complaints.

Take the case of Harvard, which in July 2014 unveiled its new university-wide disciplinary procedures for handling complaints of sex assault or harassment. When Harvard Law faculty saw the new policy (which the law school had not been involved in developing), 28 of them fired off a joint letter of protest.

The nicest thing they had to say about the new policy was it would “do more harm than good.” Specifically, the law faculty protestors charged the new procedures:

  • “lack the most basic elements of fairness and due process”
  • made subjects for investigation conduct not covered by sex discrimination and harassment laws
  • were “overwhelmingly stacked against the accused.”

Specifically, the Harvard law faculty faulted the university’s newly-minted procedures for handling sex misconduct complaints for not adequately providing accused students with an opportunity to:

  • learn the specifics of charges against them
  • question witnesses
  • present a defense.

Small wonder the law faculty protesters termed the procedure “starkly one-sided” against students accused of misconduct.

Recall that the Department of Education is urging colleges to adopt a “preponderance of the evidence” standard for campus disciplinary hearings, rather than anything approaching the “beyond a reasonable doubt” standard for criminal defendants. Nor is that the only bad idea gaining steam in activist and government circles.

In April last year, a White House task force studying campus sexual assaults issued its first report, and included in its recommendations the suggestion that colleges consider adopting a “single investigator” model who would be responsible not just for investigating student sex assault and harassment complaints, but also presenting the university case and handling any appeals. That was also part of the much-criticized Harvard procedures.

Most college administrators, if they are candid, would admit they have little or no expertise in running criminal investigations or conducting hearings into serious student misconduct. To concentrate such power in a single, perhaps ill-prepared college administrator, is nearly guaranteed to mean bad cases going forward.

Federal officials working on preventing campus sexual assaults also display numerous blind spots. To illustrate: the report of the White House task force makes no mention of alcohol, just as Department of Justice grants for studies of campus attacks have excluded that topic for well over a decade.

Activists insist mentioning alcohol as a risk factor stigmatizes assault victims, but a recent survey found alcohol was a factor in about two-thirds of campus assaults – why isn’t that relevant to mention if you really want to address the problem?

Making matters worse, many schools have also decided to forbid accused students from having legal assistance at such hearings. In the San Diego case, the accused student was allowed to bring a lawyer to the disciplinary hearing, — but the lawyer was not allowed to speak, much less ask questions of witnesses.

North Carolina adopted a law a few months ago, the nation’s first of its type, which guarantees that students in state schools who hire a lawyer or a non-lawyer advocate will retain the right to have their representative accompany them and participate fully in almost all campus disciplinary hearings.

Of course, schools need to protect the rights of victims of campus sexual assaults. But, given the potential stakes and the damage a wrongful finding of responsibility could bring to an accused student, the answer is not to make campus disciplinary hearings so one-sided that an accused student is deprived of the right to a fair hearing, the opportunity to present a defense, and the right to be judged by reasonable standards. Any student being interrogated or accused in a campus hearing over potentially serious misconduct should not be forced to respond without full access to experienced legal counsel.

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