By Azhar Majeed at The Huffington Post
By law, universities across the country must promulgate proper sexual misconduct policies to serve their campuses and protect student rights. But to do so, they need to be aware of the problems presented by the “Checklist for Campus Sexual Misconduct Policies” recently announced by a task force commissioned by the White House.
The White House Task Force to Protect Students from Sexual Assault released a much-anticipated report last week recommending best practices for colleges to prevent and address sexual assault and sexual harassment. This, of course, is a welcome development given the prevalence of reports of sexual assault on university campuses in recent years, as well as the headlines generated by students’ allegations that their institution failed to adequately respond to their complaint. It goes without saying that sexual assault and rape are serious crimes to which we as a society need to pay the utmost attention.
Unfortunately, the task force missed an opportunity to bring meaningful, long-lasting reform to a system that has increasingly demonstrated that universities insufficiently respond to allegations of sexual assault and rape. Rather than offer solutions that will allow universities as well as local law enforcement to better address these difficult and complex issues, the task force’s report essentially recommends that we keep the same broken system in place. This despite the fact that universities have over and over proven themselves largely incapable of effectively investigating and adjudicating cases of sexual assault — to the detriment of alleged victims, accused students, and, ultimately, fairness and justice on campus. It’s also despite the fact that law enforcement is much better equipped to conduct a fair, impartial, and reliable process — one that can actually incarcerate offenders — and should therefore take on a greater role in these criminal matters.
As the non-partisan, non-profit Foundation for Individual Rights in Education (FIRE, where I work) has pointed out, the task force’s recommendations empower university administrators, who typically possess no criminal law background, to continue to conduct unreliable and often-biased hearings and provide little in the way of due process protections to the accused.
While it is necessary to examine the task force’s entire report (and the substantial criticisms of it that have already come out) to understand these problems, those same shortcomings are also reflected in the Checklist for Campus Sexual Misconduct Policies accompanying the release of the report. In this checklist document, the task force attempts to set forth a number of elements that colleges should incorporate into their policies and procedures on sexual harassment and assault.
Foremost among the problems with this document is that it provides for use of the “preponderance of the evidence” standard of proof in campus disciplinary hearings on these matters. The preponderance standard — as student rights and civil liberties advocates like FIRE have argued repeatedly – is insufficient to protect the rights of the accused and to ensure the reliability of a hearing’s outcome. Our judiciary’s lowest evidentiary standard, the preponderance standard requires only a 50.01 percent likelihood that an offense was committed to find someone responsible for the offense. The need for a more robust standard should be especially clear in sexual assault cases, which often involve unclear and disputed fact patterns, “he said, she said” narratives, and complicating factors such as the use of alcohol and the lack of reliable witnesses. In this context, one would reasonably think, more proof is necessary to ensure accuracy of findings, not less.
Yet the task force has chosen to stick with this low evidentiary standard previously mandated by the Department of Education’s Office for Civil Rights in a controversial “Dear Colleague” letter from April 2011. That mandate also came under heavy criticism for the way it damaged the credibility and fairness of campus hearings. Now, the White House task force has furthered the chances that innocent students will be erroneously found guilty under a flawed disciplinary process.
In addition, the task force’s checklist document is amorphous on the right of the accused to cross-examine his or her accuser. The document only says that if an institution “generally allows for cross-examination,” its policy should include a “description of alternative methods that preclude the respondent from personally cross-examining the complainant.” It’s not clear from the document what these alternative methods might look like in practice, and the task force imperils due process rights by leaving that interpretation to the discretion of university administrators. No matter how one interprets this particular section of the document, what is unmistakable is that the right to confront one’s accuser is firmly protected by the Constitution and is a crucial element of defending oneself in a hearing. Such a right should not be summarily abandoned in the campus setting simply because the White House’s task force says so.
The task force’s checklist document is also problematic when it comes to sexual harassment. To begin with, one may reasonably question the approach of addressing sexual harassment and sexual assault in the same policy guidelines and grouping them together under the umbrella of sexual misconduct. After all, sexual assault and sexual harassment are very different in nature, present different issues on campus, and therefore require separate sets of solutions.
Leaving that aside, however, the task force’s policy checklist threatens students’ First Amendment rights in its definitions section, recommending that universities define the conduct prohibited by their policy, including “[s]exual harassment” and “[h]ostile environment caused by sexual harassment.” This raises the question of what type of conduct would constitute sexual harassment without rising to the level of creating a hostile educational environment. If university policies do not require that alleged sexual harassment create a hostile environment in order to be actionable, “harassment” can be used as a catch-all provision to censor or punish any expression that another person subjectively finds offensive or annoying. Indeed, FIRE’s case archives are littered with instances in which precisely this occurred, even though the Supreme Court and lower courts have made clear that such rules are unconstitutional.
By stating that sexual harassment and hostile environment should be defined separately, the task force reintroduces a problem created by OCR when it, along with the Department of Justice, reached a joint agreement with the University of Montana in May 2013. As part of a settlement concluding the federal government’s investigation into the university’s responses to sexual assault and sexual harassment, OCR and DOJ loosely defined campus sexual harassment as “any unwelcome conduct of a sexual nature,” including “verbal conduct” (i.e., speech). The Montana agreement made clear that this broad definition was separate from its standard for the creation of a hostile environment. Worse, the agreement explicitly touted itself as a “blueprint”for colleges and universities across the country. Thus, in one fell swoop, OCR and DOJ imperiled campus speech rights by mandating that universities prohibit, as sexual harassment, such clearly protected expressive activity as discussing literary works with sexual themes (think Lolita or Lady Chatterley’s Lover) and debating social and political issues like reproductive rights, gay marriage, and human sexuality. Now, the White House task force has made it even more likely that colleges will follow this “blueprint” for restricting freedom of speech in higher education.
The White House task force is right to be concerned about the prevalence of sexual assault and sexual harassment on campus, and to attempt to create solutions to these problems. However, doing so must not come at the expense of students’ due process and free speech rights. Nor can it truly be achieved by investing so heavily in a broken disciplinary system. For these reasons, FIRE and other advocates for campus rights are ultimately disappointed in the task force’s recommendations.