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FIRE Responds to White House Task Force’s First Report on Campus Sexual Assault

By April 29, 2014

Three months after its creation, the White House Task Force to Protect Students from Sexual Assault issued its first report (PDF) today. Titled “Not Alone” and accompanied by a new website, NotAlone.gov, the report announces new recommended practices for colleges and universities nationwide. Troublingly, the Task Force’s recommended practices and the accompanying documents fail to answer FIRE’s grave and continuing concerns about campus civil liberties and the reliability, impartiality, and fundamental fairness of campus judicial proceedings for students accused of sexual harassment and assault.

Among the documents released with the report are a template for “campus climate surveys,” a sexual misconduct policy checklist, and a sample confidentiality policy. The report is also accompanied by the issuance of a new guidance document regarding Title IX from the Department of Education’s Office for Civil Rights (OCR).

FIRE President Greg Lukianoff issued the following statement:

No one is happy with the way campuses currently deal with sexual harassment, sexual violence, and rape—not victims, not the accused, not parents or loved ones, not administrators, not university counsel, not defense attorneys, not civil liberties advocates, and not the general public.

The White House Task Force has attempted to correct the status quo’s failures. Unfortunately, it has missed an opportunity for meaningful and positive reform, instead doubling down on a broken system. By continuing to empower campus judiciaries to adjudicate allegations of serious criminal activity, the Task Force’s recommendations may ultimately worsen the situation for both victims and the accused. As the Rape, Abuse & Incest National Network (RAINN), one of the nation’s preeminent anti-sexual assault organizations, stated in its written comment to the Task Force, “until we find a way to engage and partner with law enforcement, to bring these crimes out of the shadows of dorm rooms and administrators’ offices, and to treat them as the felonies that they are, we will not make the progress we hope.”

Perhaps most worryingly, the Task Force appears to be enthusiastic about essentially eliminating hearings altogether for students accused of assault and harassment. The Task Force is exploring a “single investigator” model, where a sole administrator would be empowered to serve as detective, judge and jury, affording the accused no chance to challenge his or her accuser’s testimony. Tellingly, the Task Force expresses only the most meager sense of the rights necessary to secure fundamentally fair hearings, noting that it believes the single investigator model would still “safeguard[] an alleged perpetrator’s right to notice and to be heard.”

Keep in mind that in recent years, federal agencies have already ordered a breathtaking expansion of the definition of sexual harassment that cannot be squared with Supreme Court precedent. The Department of Education’s Office for Civil Rights has also mandated the use of our nation’s lowest standard of evidence in adjudicating campus allegations of sexual harassment and assault. Compounding these troubling developments, the Task Force recommends trainings that seem more likely to prejudice investigations than to deliver an impartial hearing.

In a written comment submitted in February, FIRE called upon the Task Force to correct OCR’s insufficient concern for the rights of accused students and fundamental fairness. Unfortunately, it has failed to do so.

Sexual assault is one of the worst crimes a person can commit. Those found guilty of it should be punished to the fullest extent allowed by law. But precisely because sexual assault is such a serious crime, providing those accused of it with due process—a term that appears nowhere in the entire report—becomes even more important. Due process is more than a system for protecting the rights of the accused; it’s a set of procedures intended to ensure that findings of guilt or innocence are accurate, fair, and reliable.

FIRE is under no illusion that there is a simple solution to the problem of sexual assault on campus. But by lowering the bar for finding guilt, expanding the definition of harassment beyond recognition, eliminating precious due process protections, and entrusting unqualified campus employees to safeguard the vitally important interests of all involved, we are creating a system that is impossible for colleges to fairly administer, and one that will be even less fair, reliable, and accurate than before.

FIRE will have much more on the Task Force’s recommendations in the coming days.

Cases: National: White House Task Force on Campus Sexual Assault Jeopardizes Student Due Process Departments of Education and Justice: National Requirement for Unconstitutional Speech Codes U.S. Department of Education’s Office for Civil Rights April 4, 2011, Guidance Letter Reduces Due Process Protections