Should College Transcripts Report Accusations of Sex Offenses?

New York Universities Must Report Sex Offenses in College Transcripts

Virginia and New York in 2015 became the first states to require academic transcripts from their colleges to show whether a student has been disciplined for sexual assault, but other states have considered following suit, and some members of Congress support a federal law to the same end.

Advocates of this mandate argue it’ll protect against problem students transferring from one college to another state, where they may re-offend. They point to criminals like Jesse Matthew, a former student at a college in Virginia, who after being accused of rape transferred to another in-state college, where he was soon accused of a similar offense; years after dropping out, he confessed to the rape-murders of two coeds from different Virginia colleges (who wouldn’t have been helped by an old warning on Matthew’s transcript).

Similar bills have been introduced in a number of states, including California (where Gov. Jerry Brown vetoed a bill) and Maryland (where it died in committee). But with the support of groups like the National Association for Women, it’s likely to reappear.

Late last year, a similar bill was introduced in the U.S. House of Representatives. The “Safe Transfer Act,” (H.R. 6523), offered by Rep. Jackie Speier (D-CA) and a half-dozen co-sponsors, would cut off federal funds, including federally-backed student loans, to any college which doesn’t note on a student’s transcript: (a) for one year, any pending campus disciplinary proceeding accusing the student of sexual misconduct, or (b) for five years, any final finding of responsibility on such a charge.

Is There a Justification for Including Accusations of Sex Offenses in College Transcripts?

Rep. Speier argued that, by noting academic offenses like cheating on school transcripts, but not similarly recording incidents of sexual violence on campus, schools were treating the former more seriously than the latter. Her bill would explicitly provide federal educational privacy law allows the required disclosures. It also requires accused students to have been notified of the disclosure and given an opportunity to offer a statement of explanation to accompany the transcript (steps like notice and a chance to be heard may seem like obvious parts of procedural fairness, but in fact are frequently denied accused students in campus hearings on such charges).

But there are some serious problems with these proposals. First and foremost, there are serious problems in the way most colleges go about inquiries and disciplinary procedures in such cases. It’s no exaggeration to say students charged by campus officials are bringing — and winning — a growing number of lawsuits over shoddy investigations and seriously unbalanced procedures falling far short of due process.

The Foundation for Individual Rights in Education (FIRE), a nonpartisan non-profit organization whose fine work I know, first-hand, points out some other factors at work: many schools’ reluctance to seek assistance from law enforcement agencies, which have expertise and tools educators lack, and the Department of Education’s wrong-headed insistence that school disciplinary hearings use the lowest standard of proof, a preponderance of evidence, which would be rejected out of hand by any criminal court in the land.

Rather than ignoring grave flaws in many campus hearings, states should forego the showy but ineffective tactic of attaching “scarlet letter” warnings to transcripts — and instead work to build into campus disciplinary proceedings the fundamental fairness that’s now too often lacking.

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