Over the last few days, a number of news outlets have mischaracterized FIRE’s position on how colleges should address sexual assault on campus. These mischaracterizations have largely focused on two aspects of FIRE’s advocacy.
The first point of contention is whether it is wiser for sexual assault allegations to be investigated and adjudicated by trained law enforcement professionals and impartial courts or by amateur campus administrators who may be acting with the interests of their institution, rather than of justice, in mind.
The second question is whether it is appropriate for colleges to use the lowest feasible evidentiary standard—particularly without the procedural protections that accompany the use of that standard in other contexts—if they are to remain the primary investigators and adjudicators of sexual assault allegations.
Before I go further, let me be clear about something: FIRE is a civil liberties organization. We defend the rights of students and faculty to free speech and to due process—not only in the context of sexual misconduct proceedings, but in nonacademic misconduct proceedings of any kind. Sexual assault is a heinous crime and should be harshly punished. But everyone accused of serious wrongdoing is entitled to a fair process before being found responsible—and anyone who believes this position is somehow incompatible with justice or with a concern for the well-being of crime victims simply lacks an appreciation of the historical importance of due process as a cornerstone of American justice, especially in contexts (both civil and criminal) where people have stood accused of horrific or simply unpopular offenses. It is due process that establishes the integrity of the process of separating the guilty from the innocent.
With that said, the mischaracterizations of FIRE’s positions appearing lately in the media suggest that we would have sexual assault complaints referred to law enforcement and have colleges wash their hands of them, and that we don’t want rapists held accountable.
Neither claim is true. Nor have we ever said anything to that effect.
FIRE has long held the view that colleges have a vital role to play in responding to campus sexual assault allegations. We agree with the premise (and the supporting caselaw) that when accusations go unaddressed, it can create a hostile environment that deters victims from continuing their education. In this regard, we do believe there is a role for colleges.
As I explained in written testimony I submitted to Congress in 2015:
While colleges have unsurprisingly proved incapable of competently determining the truth or falsity of felony allegations, they are well-equipped to secure counseling for alleged victims, provide academic and housing accommodations, secure necessary medical attention, and provide general guidance for students who navigate the criminal justice system. Institutions should perform those functions regardless of a complainant’s decision to report the incident.
FIRE’s view that the investigations and adjudications of these cases should be performed by law enforcement and courts is not the radical view some have portrayed it to be in recent weeks. In fact, it is a view we share with Sen. Bernie Sanders, Sen. Sheldon Whitehouse, Janet Napolitano (president of the University of California System and former secretary of the Department of Homeland Security), and the Rape, Abuse & Incest National Network, all of whom have argued that law enforcement must play a central role in responding to sexual assault allegations.
There are a lot of reasons why our continued dependence on campus courts frustrates our ability to provide justice.
The first reason why courts of law are better suited to adjudicate these cases is because they have essential tools that higher education institutions lack, including but not limited to the ability to:
- subpoena witnesses or put them under oath;
- collect, analyze, interpret, and maintain forensic evidence;
- utilize the expertise of professionals in special victims units;
- employ formal rules of evidence to ensure that reliable information is considered and unreliable or unduly prejudicial information is excluded;
- have impartial judges presiding over the proceedings; and
- use the tools of legal discovery that ensure that the parties and, ultimately, the fact-finders have a full picture of the evidence.
Expecting campus courts to consistently deliver justice without these tools is unreasonable. It should surprise no one that with these procedural shortcomings, guilty students have been exonerated and innocent students expelled.
The Department of Education’s (ED’s) unlawful insistence that institutions use the low “preponderance of the evidence” standard—which requires the campus fact-finder to be only 50.01% certain that the accused committed the offense—despite the absence of those essential safeguards dramatically increases the margin of error. That is why FIRE consistently argues that the preponderance of the evidence standard may only be used fairly when it is accompanied by the meaningful protections utilized by courts and in administrative proceedings.
The other reason why it is unhelpful to continue to leave these investigations to colleges is because law enforcement is critical to keeping our communities safe. In a piece I wrote for The Hill in 2015, I explained:
Moreover, campus tribunals cannot adequately protect the interests of victims and the community. Rape, after all, is a serious, dangerous crime. When law enforcement and courts are not involved early, perpetrators remain free to prey on new victims. Does anyone think it was reasonable for New York University to wait two months before advising the police that one of its students had uploaded a video of himself lighting his girlfriend on fire as she lay passed out in her dorm? NYU apparently delayed reporting the incident to the police to honor the victim’s preference. Remember the public outrage when the University of Virginia kept “Jackie’s” accusations of a brutal gang rape internal? Had the allegations been factual, who would have been made safer by that decision?
Given the high stakes for all involved, it is dangerous to remove the adjudication of sexual assault allegations from professionals with the power to impose appropriate punishment on those properly found guilty.
ED actually has shown some recognition of this. In attempting to strike the balance between honoring a complainant’s request for confidentiality and the community’s interest in public safety, the Department issued a document titled “Questions and Answers on Title IX and Sexual Violence” in which it encouraged institutions to honor a complainant’s confidentiality request, unless doing so would be dangerous. ED encouraged institutions to weigh factors such as “whether the alleged perpetrator has a history of arrests… whether the alleged perpetrator threatened further sexual violence or other violence against the student or others, and whether the sexual violence was committed by multiple perpetrators)… …[and] whether the [alleged] sexual violence was perpetrated with a weapon… .” Although FIRE’s disagreements with the Department are well-catalogued, this is one area in which we find ourselves in agreement.
The bottom line is that even when a college expels the right student for a sexual assault, our communities—including the students at that college—remain unsafe while that perpetrator walks free. Unless a rapist is behind bars, he or she may commit the same crime again. And rapists can still target potential victims who are enrolled in their former institution. While there is nothing unjust about expelling a student who was given meaningful due process, that penalty does not adequately protect our communities.
In short, the best-case scenario for punishing a rapist through a campus disciplinary proceeding and without the involvement of law enforcement is equivalent to the worst-case scenario in a court of law.
If we are to find real solutions to address campus sexual assault, victims’ rights advocates and civil liberties organizations like FIRE must work together to guarantee fundamental fairness to all parties. The first step is to stop the unnecessary attacks that mischaracterize the positions of those that believe the current approach is unfair and inadequate. FIRE remains ready to work with anyone interested in good-faith dialogue toward finding solutions that will make our campuses safer and fairer.