Campus ‘Due Process Has No Lobby’

July 31, 2014

By KC Johnson at Minding the Campus

The long-awaited bill from Missouri senator Claire McCaskill (co-sponsored by seven other senators, two Democrats and three Republicans) has now been introduced in the Senate. Given that McCaskill’s springtime town halls featured no defense attorneys or civil libertarians, it’s unsurprising that the bill contained nothing about the rights of accused students.

As FIRE has pointed out, two portions of the bill would be positive developments. First, the bill calls for colleges to eliminate special disciplinary procedures for athletes, fraternities, or other campus groups. (Since, it seems, a miniscule number of schools actually have such procedures, this provision wouldn’t bring much change.) Second, the measure would require colleges to enter into” a memorandum of understanding with all applicable local law enforcement agencies” regarding both sides’ responsibilities in investigating campus sexual assault allegations. Ideally, these memos would lead colleges to turn over more responsibility to trained law enforcement investigators. More likely, the memos will expose the efforts of activists (see, for instance, the arguments of Stanford law professor Michelle Dauber) to keep the criminal justice system as far away as possible from adjudicating campus claims.

Subsection 4 of the law enforcement section of the bill, however, contains a deeply troubling provision, requiring colleges to develop “a method of sharing [with law enforcement] information about specific crimes, when directed by the victim [emphasis added].” First, at the point in the case covered by this subsection, there is no “victim”—there’s an accuser and an accused student. McCaskill’s word choice suggests that she and her colleagues believe that an accuser is automatically a “victim,” thereby abandoning the presumption of innocence for the accused. Second, the provision gives the “victim” authority over whether or not to share information with law enforcement. It’s hard to imagine any accuser would “direct” her college to share information with police about the “specific crime” of filing a false report, if the college uncovered evidence that the accuser lied.

The bill also has several reporting requirements (coupled with a substantial increase in potential penalties for colleges that don’t comply with the law). Among the items that colleges would have to reveal are the number of students found not culpable of sexual assault, and the punishments given to students whose school branded them rapists.

In theory, these reporting provisions would have no practical impact on the outcomes of individual cases. In reality, both of these provisions would likely pressure colleges to tilt an already tilted process away from accused students. Would administrators serving on disciplinary panels be subtly pressured to record guilty findings, lest the school’s percentage of exoneration be too high? Would colleges be willing to report publicly that they haven’t expelled students they branded rapists, even when the student’s actual offense falls far short of what anyone outside the college walls would define as sexual assault? The answer to both of those questions is, likely, yes. Indeed, as NCHERM’s Brett Sokolow has conceded, colleges are already improperly convicting students based on a fear of subsequent OCR investigations.

At least one of the co-sponsors, Richard Blumenthal (D-Connecticut), issued a press release revealing unfamiliarity with the basic data of the issue. Blumenthal, a former state attorney general who amazingly referred to the measure as “thorough” and a “bill of rights,” issued a press release with the following claim: “Available statistics show that approximately 19 percent of undergraduate women have been the victims of sexual assault. Because many crimes are not reported, that number could be substantially higher.” It appears as if the Connecticut senator believes that the oft-cited “one-in-five” figure refers to students who have actually filed claims of sexual assault, either through the campus disciplinary process or through the police, and that alleged underreporting bumps the number of actual victims much higher. In reality, of course, only a small percentage of women claim they have been sexually assaulted at college, and the “one-in five” figure comes from alleged underreporting. That one of the bill’s co-sponsors doesn’t even know this testifies to the slippery nature of statistics on this issue.

A final point. The measure has eight Senate sponsors, which range from the very liberal Blumenthal to the very conservative Charles Grassley. Two of the co-sponsors (Kirsten Gillibrand and Marco Rubio) are known for their ambition. The wide ideological coalition reminds us again, as Christina Hoff Sommers observed shortly after the bill was released, that “due process has no lobby. Republicans & Dem[ocrat]s do the bidding of gender warriors. Not a word about falsely accused.”