‘Columbus Dispatch’ and Student Press Law Center Investigate ‘Campus Insecurity’

November 26, 2014

The Columbus Dispatch has teamed up with the Student Press Law Center (SPLC) to take a thorough look at how colleges and universities are struggling to handle allegations of sexual assault and other violent crimes. Problems abound, and the articles published as part of the “Campus Insecurity” series are shedding light on several troubling trends on campus.

An article published on Sunday, for example, details several cases in which students were found responsible in campus hearings for violent offenses—including one that resulted in another student’s death—but were not expelled from their institutions. In many cases, local prosecutors decline to take on the cases because they believe there is not enough evidence. At the same time, as FIRE’s Joe Cohn points out, college administrators are ill-equipped to investigate and adjudicate cases, with neither the training nor the resources that law enforcement has. The Dispatch quotes Joe: “That is not a recipe for justice,” he said. “That is a recipe for error, and it really should be deeply troubling to all of us.”

Another topic that may sound familiar to those who follow SPLC’s work is the frequency with which institutions misunderstand their obligations under the Family Educational Rights and Privacy Act. FERPA was enacted to keep educational records private, but schools frequently (and improperly) cite it in refusing to disclose records relating to violent crimes on campus. The Dispatch reports:

As part of this investigation, The Dispatch/SPLC asked 110 colleges, including the 13 public universities in Ohio and two of their branch campuses, to provide disciplinary records for cases involving violent crimes.

Federal student-privacy rules explicitly allow colleges to release the names of students who are found responsible for a crime of violence. Still, more than 75 percent of schools did not provide any documents — even in states where open-records laws require colleges to release such information to the public.

Instances like this are why SPLC maintains “FERPA Fact,” a blog analyzing the validity of various claims by universities that FERPA does not permit them to release requested information.

Also covered in the investigative series are the serious due process issues plaguing college judicial systems. On Tuesday, the Dispatch reviewed some of the obstacles students accused of sexual assault face when trying to defend themselves in campus hearings:

Schools limit how much detail students can see about the accusations against them. They limit the type of evidence students can submit in their defense. Some allow witnesses, some allow anonymous witnesses and others allow no witnesses. And until recently, many could and did ban lawyers from campus hearings, even though the judicial board findings can be used in criminal court.

In an attempt to help their peers receive a fair hearing, students at Ohio University (OU) formed a group called Students Defending Students. For 36 years, SDS students have guided accused students through the university judicial process, advising students of their rights and advocating for due process. Talking to the Dispatch, SDS Associate Director Isaac Smith noted the low “preponderance of the evidence” standard of proof used in campus hearings on sexual assault: “It’s 50 percent and a feather. It’s pretty darn close to guilty until proven innocent.” (Recognize the name? Smith is the student-plaintiff defending his and his fellow students’ First Amendment rights in a lawsuit against OU filed as part of FIRE’s Stand Up For Speech Litigation Project.)

Colleges and universities are under significant pressure to show they take allegations of sexual assault seriously, often revising sexual assault procedures in a way that reduces accused students’ rights. But dozens of students who claim they were expelled without a fair hearing are taking their cases to court. The Dispatch reports on the details of some of their cases, and they are troubling. For example, former Xavier University student Dezmine Wells alleges the following in his lawsuit against the university:

  • The burden of proof was placed on Wells to prove that sex with the woman was consensual.
  • The faculty and student members of the board were woefully untrained to evaluate a sexual-assault case or understand the significance of a rape kit.
  • A college administrator did not tell the board that a medical examination showed no signs of sexual assault.
  • The woman was allowed to call character witnesses but Wells was not.

SPLC and the Dispatch are to be commended for bringing attention to these important issues, and FIRE looks forward to seeing their continuing coverage. Readers can find more from this series in the Dispatch or on SPLC’s website.

Schools:  Ohio University