The White House Takes On College Rape

May 1, 2014

At The Dish

Obama’s special task force assigned to address sexual assault on campuses has released its first report (pdf), which includes recommendations for what colleges should do:

The report calls for prevention programs that “are sustained (not brief, one-shot educational programs), comprehensive, and address the root individual, relational and societal causes of sexual assault.” Bystander intervention is listed as a “promising prevention strateg[y].” The CDC is currently researching the best sexual violence prevention practices.

The Task Force recommends that schools train officials on how to best respond to sexual assault complaints, avoiding “insensitive or judgmental comments” that make the victim feel he or she is being blamed instead of the person accused. It also recommended that colleges do away with mandatory reporting policies that may make students hesitant to report assaults in the first place. Assault survivors should have a place to turn to where they know what they say will remain confidential unless they say otherwise. “This is, by far, the problem we heard most about,” the report says.

The PSA seen above was released with the report. Bazelon wants to know why it took so long:

The administration’s recommendations are generally to the good, and Congress should make them stick by enacting them into law. And yet, I have to pause to say that I can’t believe how long it has taken to put this issue at the front of the national agenda—and how toothless the laws written to protect students remain. This is a problem the White House recommendations don’t sufficiently address. 

Title IX has been on the books since 1972. The Clery Act, which requires schools to disclose campus crime statistics, passed in 1990. In 2011, the Department of Education’s Office for Civil Rights, which is responsible for enforcing Title IX, sent schools a Dear Colleague letter emphasizing their responsibilities to provide an education free from sexual harassment and violence.  And yet today the talking point from Vice President Joe Biden is, “Colleges and universities need to face the facts about sexual assault. No more turning a blind eye or pretending it doesn’t exist.” Well, yes, but shouldn’t they have stopped turning a blind eye a long time ago?

Jessica Valenti criticizes the report for its omissions:

The White House report also doesn’t provide guidelines for how schools should discipline campus rapists. According to a 2010 investigative report from the Center of Public Integrity, American colleges almost never expel those found guilty of sexual assault in campus judiciary proceedings. “The fact that schools will expel someone for cheating on a test, but not for violating another human being and their dignity shows they don’t have their values in order,” says Wanjuki.

Instead, colleges often opt for “punishments” like asking a rapist to write a letter of apology to his or her victim or forcing the assailant to write a research paper about rape. And while these abusers remain on campus – likely to rape again – their victims are often harassed, stonewalled by administrators and/or end up leaving campus for fear of running into their attacker.

Greg Lukianoff, president of the Foundation for Individual Rights in Education, is concerned that the recommendations invite colleges to disregard due process:

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.”

Meanwhile, Charlotte Alter explores college-aged men’s fears that they could be falsely accused of rape or commit it by accident:

The changing definition of “consent” fuels a lot of this anxiety. Ben Murrie, one of the producers of a traveling campus assault education program called Sex Signals, says his program defines consent as “present, active, ongoing, freely given, and sober,” in an attempt to move away from the old “no means no” idea of consent. But to a literal-minded college student, that means anyone who willingly has sex after a couple beers could be a rape victim, and anyone who doesn’t hear “please continue with intercourse” could be a rapist.

Update from a reader, who disagrees with Bazelon:

As a former lawyer for the Education Department’s Office for Civil Rights, I don’t think Title IX is “toothless”.  Moreover, civil-libertarians have objected to the Education Department’s recent guidance on campus sexual assault and harassment, as I discuss in the commentary further below.

Not only have people successfully sued for a million dollars or more under Title IX and its sister statute, Title VI (which deals with racial harassment), as in the Zeno case, but the Education Department’s Office for Civil Rights does in fact effectively impose sanctions on schools even when it doesn’t cut off their federal funds, since it sometimes conditions the end of the investigation on a resolution agreement that contains monetary compensation for victims.

For example, Tufts recently agreed to provide “monetary compensation” for a complainant, despite denying any wrongdoing, although it balked at an Education Department demand that it also declare itself in violation of Title IX: “Tufts signed an agreement with the government earlier this month, pledging to take a long list of steps in improving their policies, as well as providing monetary compensation to the student.”

Moreover, many seemingly-innocent students have been expelled or suspended based on meager evidence, as is evidenced by the cases cited on the web site of the Foundation for Individual Rights in Education, and in former Massachusetts ACLU leader Harvey Silverglate’s Wall Street Journal op-ed in discussing the Caleb Warner case. As I noted in the commentary below,  “For examples of seemingly-innocent students expelled or suspended from school based on very weak evidence, in the aftermath of the Education Department’s “Dear Colleague” letter, see herehereherehereherehere, and here.”

Unfortunately, the deck is usually stacked against the accused student.  School officials have every incentive to expel students if there is any chance they are guilty at all. A state university official who doesn’t kick out the accused can be individually sued under decisions like Murrell v. School District No. 1 and Fitzgerald v. Barnstable School Committee.  That’s in addition to the fact that the university itself can be sued under Title IX.  School officials can also be sued under state sexual harassment laws that reach further than Title IX, like New Jersey’s Law Against Discrimination, which provides for individual liability on the part of school officials, as well as liability based on constructive rather than actual notice.

By contrast, a school that expels an innocent accused probably can’t be sued, even if he is probably innocent, since the accused only has a right to PROCEDURAL due process, not any SUBSTANTIVE finding of guilt or innocence.  So as long as the school goes through the motions of giving the accused a fair hearing, and follows its procedures, it can kick him out even if he is probably not guilty.

Cases: National: White House Task Force on Campus Sexual Assault Jeopardizes Student Due Process