NOTE: The article excerpted on this page is from an outside publication and is posted on FIRE's website because it references FIRE's work. The viewpoints expressed in this article do not necessarily represent FIRE's positions.
By Augus Johnston at RH Reality Check
Sexual assault has long been a crisis on U.S. college campuses, but the epidemic has received new attention in recent years—in no small part because of student activists’ diligent organizing efforts and assault survivors’ bravery in holding institutions accountable for their failures.
Last week that activism bore fruit in the form of Not Alone: The First Report of the White House Task Force to Protect Students From Sexual Assault.
Not Alone is surprisingly substantial for a 20-page interim report that’s festooned with lists of bullet points. I counted more than a dozen distinct areas of action within it, ranging from a plan to create a mandatory regime of surveys of campus climate to new protocols for the reporting, investigation, and adjudication of sexual assault. There’s a lot of meat here, with the promise of much more to come.
Some observers, like the advocacy group Know Your IX, have expressed concern about the administration’s commitment to translating its plans into robust action, but the White House has already begun to take concrete steps to bring real change. Just two days after the report was published, the Department of Education bowed to a longtime activist demand and released the names of the 55 colleges it currently has under investigation for alleged mishandling of sexual assault allegations. This disclosure, coming at a moment when high school seniors are making choices about where to enroll in the fall, is sure to ratchet up pressure for reform.
But although the report was generally welcomed by advocates for survivors of sexual assault, and much of its content has proved uncontroversial, some specific provisions of the report have been the subject of criticism.
Among the first and loudest critiques of the report came from the Foundation for Individual Rights in Education (FIRE), which has long argued that colleges are not the proper venue for the adjudication of sexual assault allegations. Expressing “grave and continuing concerns about campus civil liberties and the reliability, impartiality, and fundamental fairness of campus judicial proceedings for students accused of sexual harassment and assault,” FIRE said that the report’s emphasis on reforming college disciplinary policies amounted to “doubling down on a broken system.”
Citing a call from the Rape, Abuse, & Incest National Network (RAINN) for colleges and government to treat rape and sexual assault “as the felonies that they are,” FIRE urged the administration to stop “empower[ing] campus judiciaries to adjudicate allegations of serious criminal activity.” If such bodies are to take on such responsibilities, FIRE argues, the accused must be assured of robust due process protections. “Due process,” FIRE argues, “is more than a system for protecting the rights of the accused; it’s a set of procedures intended to ensure that findings of guilt or innocence are accurate, fair, and reliable.” The report’s provisions, FIRE says, fail to provide such assurances.
Not all advocates agree that more campus sexual assaults should be turned over to the courts, however. As Alexandra Brodsky of Know Your IX put it earlier this year, “survivors know the criminal justice system does not work.” FIRE’s frustrations notwithstanding, some feminists have argued the report goes too far in embracing a criminal-justice model, failing to adequately reckon with the ways in which both the courts and campus judiciaries routinely victimize sexual assault survivors.
Prominent among these feminist critics of the report was Melissa McEwan of the feminist blog Shakesville, who devoted particular attention to the report’s approach to the issue of reporting. McEwan rejected the report’s conflation of “getting help” and “filing a formal complaint,” given the traumas that institutions so often inflict on survivors who pursue redress through such channels. In addition, she questioned the report’s treatment of the issue of confidentiality, in which the issue of whether survivors’ expectations (and assurances) of confidentiality would always be respected under the new model protocols was left frustratingly vague.
McEwan also highlighted Native American feminist activist Lauren Chief Elk’s concerns with the report’s embrace of the concept of bystander intervention. As Chief Elk has noted in the past, when relevant institutions move to protect abusers—as colleges often do—bystanders who intervene can be subjected to the same persecution as inconveniently vocal survivors. The report, however, is silent on the question of the need for robust protections for those who step forward on another’s behalf.
Though the authors of the White House report, the criminalization advocates at FIRE, and the report’s left feminist critics have significant disagreements, their analyses of the problem do share one common understanding: They all proceed from the premise that the concerns of sexual assault survivors and those of higher education institutions are not the same. They may overlap on occasion, but they are not identical, and where they diverge it is a disastrous mistake to expect colleges to act on the basis of anything but their own institutional self-interest.
Where the three camps differ is in how they believe this divergence of interests can best be overcome. For the White House, the answer lies in tinkering with carrots and sticks—in tweaking the system to make colleges’ interests align more properly with those of assault survivors. For FIRE, the answer is to remove responsibility for the problem from the colleges and to turn it over to the courts. For many feminists, the answer lies at least in part in a more rigorous confrontation with individuals’ and institutions’ complicity in rape culture itself.
This administration’s campus sexual assault policies are multiple, and very much in flux. Which approaches and pressures will be most influential as they are developed and implemented across agencies and campuses remains unknown. One fact is already clear, however: U.S. campus policies concerning sexual violence toward students are in a period of change, and the pace of that change is about to accelerate.