Nearly a month after the U.S. Senate did the same, the House of Representatives voted today to reauthorize the Violence Against Women Act (VAWA). Although FIRE takes no position on a vast majority of the domestic violence bill, we have been monitoring aspects of the legislation that affect college and university student rights.
As various iterations of VAWA made their way through Congress, three distinct threats to student rights were included in some of those versions. The originally proposed version, for example, mandated that campus judiciaries decide sexual misconduct cases under our judiciary’s lowest burden of proof, the "preponderance of the evidence" standard. Under that standard of proof, a student could be held responsible for sexual misconduct and disciplined if the fact-finder concluded that the accusations were a mere 50.01% likely to be true. Thankfully, after FIRE and others brought our concerns regarding that requirement to the Hill, Congress cut the preponderance mandate from the final version of the bill.
The next threat to student rights that was included in one of the prior versions of the VAWA reauthorization was a provision that would have created a "National Center for Campus Public Safety." The center, if created, would have had a mandate to issue "policies, procedures, and best practices relevant to campus public safety," including "effective behavioral threat assessment and management models." While those aims sound well-intentioned, FIRE opposed the center’s creation because our years of experience defending student and faculty rights have demonstrated that "threat assessment" programs can end up censoring and punishing the peaceful speech of students and faculty members. For example, one prominent threat assessment organization’s model (PDF) even identifies "harmful debate" and "wearing concealing clothing, such as hoodies" as risk factors worth monitoring.
Luckily, representatives and senators from both sides of the aisle recognized the pitfalls of creating the center. Instead, the version of VAWA passed today wisely includes a provision authorizing the Secretary of the Department of Education to "seek the advice and counsel of the Attorney General of the United States concerning the development, and dissemination to institutions of higher education, of best practices information about campus safety and emergencies."
Disappointingly, despite the two important victories, there was one concerning provision in the VAWA Reauthorization that made its way into the final version of the bill. That provision requires campus judiciaries to provide both the accusers and the accused information about their right to appeal disciplinary findings in campus sexual misconduct proceedings. The possibility of accusers appealing not-guilty findings represents a threat to fundamental fairness that is serious enough to be prohibited in criminal hearings by the Fifth Amendment’s bar against what’s known as "double jeopardy." Indeed, FIRE has long argued that for the same reasons of fundamental fairness that our criminal justice system does not allow double jeopardy, colleges and universities should not force their students to face new hearings after being cleared. With this provision now likely to be signed into law, colleges and universities can be expected to start subjecting exonerated students to double (or even triple) jeopardy. FIRE will continue to explore ways to mitigate this threat to student due process rights.