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Joe Cohn Writes for ‘The Hill’ on Campus Sexual Assault Legislation

By September 29, 2014

Torch readers may already be familiar with the Campus Accountability and Safety Act (CASA), proposed federal legislation that aims to improve colleges’ and universities’ responses to allegations of sexual assault. As FIRE wrote when the bill was introduced in July, CASA takes some important steps in taking cases away from the jurisdiction of university athletic departments and facilitating the involvement of law enforcement agencies. But the bill also includes provisions that may exacerbate the already significant problem of accused students being denied a fair hearing. In an op-ed for The Hill published today, FIRE Legislative and Policy Director Joe Cohn elaborates on this point.

To start, CASA would provide critical resources to a student alleging sexual assault, but not the accused. As Joe points out, that puts the accused student at a substantial disadvantage:

CASA tips the scales of justice too far towards the complainant by providing him or her with a “confidential advisor” to guide the student while leaving the accused student without any such assistance. This imbalance conflicts with guidance from the Department of Education’s Office for Civil Rights (OCR), the federal agency tasked with enforcing Title IX, which has made clear that schools allowing advisors to participate “at any stage of the proceedings … must do so equally for both parties.”

The bill also creates a troubling incentive for OCR to find that institutions have violated Title IX:

CASA would empower OCR to impose fines equal to 1 percent of an institution’s entire operating budget for each Title IX “violation or failure” it found—and to keep the money for itself.

In turn, institutions will feel increasing pressure to avoid such fines by finding more accused students guilty. Joe writes:

Allowing OCR to self-fund by fining institutions for violations will only accelerate the rush to judgment in campus hearings, pushing campus administrators even further towards abandoning due process altogether. Already, college attorneys have admitted that pressure from OCR has prompted unjust outcomes. The National Center for Higher Education Risk Management acknowledged in a recent open letter that in “a lot” of cases, administrators are finding accused students guilty “in spite of the evidence—or the lack thereof—because they think they are supposed to, and that doing so is what OCR wants.” It’s no wonder that more than 20 students have recently filed suit against their institutions, alleging unfair campus hearings.

Joe notes that advocates for victims and accused students alike recognize that colleges and universities are faring poorly at handling sexual assault cases. Legislation that pushes institutions to further ignore the due process rights of accused students is not the solution.

Read Joe’s piece—which also touches upon Clemson University’s violation of student privacy and California’s new “affirmative consent” legislation—in full over at The Hill.

Cases: California: Affirmative Consent Bill Threatens Student Due Process