WASHINGTON, April 30, 2012—The U.S. Senate made bipartisan progress on college student rights on Friday as it passed the Violence Against Women Reauthorization Act of 2011 (VAWA). Heeding the concerns of the Foundation for Individual Rights in Education (FIRE), Senators altered language in the final bill that might have required colleges and universities to employ our nation’s weakest standard of proof in adjudicating allegations of sexual misconduct.
"FIRE thanks Senators Patrick Leahy, Chuck Grassley, Robert Casey, Mike Crapo, and Kay Bailey Hutchison for their leadership in protecting students’ due process rights," said FIRE President Greg Lukianoff. "Campus sexual misconduct can and should be combated without eroding student due process rights."
FIRE takes no position on the vast majority of VAWA. Prior to last week’s change, however, Section 304 of the VAWA draft would have required that all colleges and universities accepting federal funding "provide a prompt and equitable investigation and resolution" of allegations of campus sexual misconduct. While FIRE of course supports prompt and equitable campus disciplinary procedures, the term "prompt and equitable" was recently (and, in FIRE’s opinion, incorrectly) defined by the Department of Education’s Office for Civil Rights (OCR) to require use of the weak "preponderance of the evidence" standard when adjudicating allegations of sexual misconduct. Rather than adopt this standard, the bill now requires that proceedings in such cases be "prompt, fair, and impartial"—as justice demands.
In November 2011, Senator Leahy, Chairman of the Senate Judiciary Committee, responded to FIRE’s concerns by dropping a VAWA provision that would have explicitly required college students accused of sexual misconduct to be tried under the weak "preponderance of the evidence" standard of proof. FIRE enthusiastically welcomed and publicly praised this important change. Unfortunately, OCR’s guidance meant that the "prompt and equitable" language substituted into the bill reintroduced the same problem.
Sharing FIRE’s concern about the troubling implications of the "prompt and equitable" provision contained in the November version of VAWA, Senator Grassley prepared an alternative version of VAWA that removed the problematic language. Senator Grassley’s alternative version, submitted to the Senate by Senator Kay Bailey Hutchison, was not adopted. However, Senator Leahy, Senator Crapo, and Senator Casey also shared FIRE’s concern about the "prompt and equitable" provision, and Senator Leahy submitted an amendment that revised the language. Senator Leahy’s amendment passed the Senate by unanimous consent on Thursday, April 26, prior to VAWA’s passage.
"Thanks to the leadership of Senators Leahy, Grassley, Casey, Crapo, and Hutchison, neither version of VAWA considered by the Senate would have required universities to lower the standard of proof employed in student sexual misconduct hearings," said FIRE Legislative and Policy Director Joe Cohn. "This important development demonstrates that due process is one area where Senators from both sides of the aisle share a common commitment."
FIRE continues to be concerned about the Senate bill’s requirement that colleges maintain "procedures for the accused and the victim to appeal the results of the institutional disciplinary proceeding." (Emphasis added.) The requirement contradicts the principle behind the Fifth Amendment’s prohibition on "double jeopardy," whereby someone accused of a crime cannot be tried again for the same charge once the original hearing has properly ended in either acquittal or conviction. (The alternative version proposed by Senator Grassley and Senator Hutchison addressed this concern.)
"FIRE is very grateful to all of the Senators who have taken our concerns about student due process seriously," said Lukianoff. "We’re hopeful that this bipartisan cooperation will continue in the House of Representatives and that the final bill will also address our ‘double jeopardy’ concerns."
FIRE is a nonprofit educational foundation that unites civil rights and civil liberties leaders, scholars, journalists, and public intellectuals from across the political and ideological spectrum on behalf of individual rights, due process, freedom of expression, academic freedom, and rights of conscience at our nation’s colleges and universities. FIRE’s efforts to preserve liberty on campuses across America are described at thefire.org.
Greg Lukianoff, President, FIRE: 215-717-3473; firstname.lastname@example.org
Cases: U.S. Department of Education’s Office for Civil Rights: Open Letter Requesting Adoption of ‘Davis’ Harassment Standard National: Violence Against Women Act Reauthorization U.S. Department of Education’s Office for Civil Rights April 4, 2011, Guidance Letter Reduces Due Process Protections