Forget Free Speech–We’re After Harassment

November 1, 2013

by KC Johnson

A few months ago, a lawyer for the State University of New York (SUNY) penned a startling column about the U.S. Department of Education’s Office for Civil Rights (OCR) “blueprint,” introduced for the University of Montana as a national model for dealing with sexual assault and sexual harassment on campus. In the “blueprint,” the OCR required the university to investigate–and report to the government–all allegations of sexual harassment, including speech protected by the First Amendment and potentially in-class discussions of topics with a sexual theme that happened to make a single student uncomfortable. Despite the document’s egregious disregard for First Amendment and due process protections, the surprising column by Andrea Stagg, an associate counsel in the SUNY Office of General Counsel, blithely urged people not to worry.

The OCR is on the side of fairness, she declared–the 2011 “Dear Colleague” letter, Stagg claimed, envisioned “the elimination of the hostile environment, if one exists, and maintaining a campus climate free from sexual harassment and violence — not the termination, suspension, or expulsion of each accused individual.” (So she believes that students found culpable under the OCR’s new anti-due process rules wouldn’t be punished?) Stagg strangely compared the mandatory reporting of protected speech under the Montana blueprint to the “see something, say something” campaign. And Stagg accused FIRE of misrepresenting OCR’s words even as she declined to actually quote from either the “Dear Colleague” letter or the Montana “blueprint”–beyond noting that the Montana settlement was, in fact, intended as a blueprint.

At the time, FIRE’s Will Creeley lamented, “Stagg’s defense of the blueprint is unpersuasive and depressingly comfortable with defining protected speech as sexual harassment. Instead of answering concerns about freedom of expression, her dismissive attitude towards the First Amendment creates serious worries about how the federal government’s mandate will be received on SUNY campuses this fall.”

That problem seems all the more acute in light of a September 30 consent agreement between OCR and the 29 SUNY campuses, terms of which the office in which Stagg works will need to implement. Some aspects of the agreement are depressingly familiar: SUNY commits to branding accused students rapists based solely on a preponderance-of-evidence finding, and promises a double-jeopardy approach of allowing accusers to appeal a not-guilty finding.

But the agreement contains two deeply troubling items regarding instances when a criminal complaint is filed. These provisions suggest that OCR–seemingly for the first time, and without any explanation for why this approach is a good policy or even makes any sense–considers colleges and universities equally capable as law enforcement agencies to investigate allegations of sexual assault.

The consent agreement holds that not only must SUNY not rely on law enforcement agencies to investigate allegations–but that in instances where an accuser simultaneously files campus and criminal charges, SUNY must comprehensively investigate, even if it receives word that no criminal charges are filed. (SUNY, in fact, promises to “promptly resume [any] Title IX investigation as soon as notified by the law enforcement agency that it has completed the evidence gathering process.”) Under the consent agreement, therefore, SUNY is now obligated to independently investigate the (rare) cases in which police not only don’t pursue charges but charge an accuser with filing a false report. This might be deemed the “Caleb Warner Rule” (the North Dakota student deemed a rapist by his school even after police filed charges against his accuser), and suggests the possibility that SUNY could brand a student a rapist even if police had independently concluded his accuser was lying.

The agreement also requires includes “a provision indicating that SUNY will implement appropriate interim steps during the law enforcement agency’s investigation period to provide for the safety of the victim(s) [emphasis added] and the campus community and the avoidance of retaliation.” This passage implies that anyone who files a claim of sexual assault automatically becomes “the victim”; how else could OCR deem someone “the victim” while the process of investigating the veracity of the accuser’s claims is still underway?

This line wasn’t a typo. The agreement several times refers to people who file complaints as “victims,” not as alleged victims or accusers. The phrase “alleged victim” is used only twice. The document never uses the term “accuser.”

The consent agreement contains various reporting requirements, including an annual survey of the “campus climate.” Yet it’s clear that OCR views the “campus” in a very limited way, defining the “campus community” as including “students (including victims and witnesses to sexual harassment), the personal safety committee, the Title IX Coordinator, and any deputy coordinators or designees.” No falsely accused students are invited to testify. No “advisors” to accused students. No campus ombudspersons or representatives of civil liberties groups on campus. OCR’s “campus community” appears to consist solely of accusers and those who sympathize with them.

Four SUNY schools receive special treatment. SUNY Albany, SUNY New Paltz, SUNY Buffalo State College, and SUNY Morrisville all must “will review all complaints filed during and since academic year 2011-2012, to determine whether each complaint was handled consistent with the criteria set forth” in the consent agreement, to include “providing appropriate remedies that may still be available for the complainants in these cases, such as counseling or academic adjustments.” Incredibly, the requirement holds out the possibility that these colleges could choose to (or even be compelled to, depending on how Stagg’s office enforces the agreement) to re-try students accused during 2011-2012 but found, after a disciplinary proceeding, not guilty. This approach carries the OCR’s fascination with double jeopardy to a new degree.

The agreement is evidence, if any was needed, that the backlash against the Montana “blueprint” has done nothing to stop the OCR’s war on campus due process.

View this article at Minding the Campus.