By Greg Piper at The College Fix
Office for Civil Rights is abusing its authority, college lawyer tells Congress
When a Democratic congressman called for expelling all students, innocent and guilty, who are accused of sexual assault, the other themes of Thursday’s House hearing on campus sexual assault got buried in the resulting Internetoutrage.
Chief among them: that colleges face contradictory directives from the federal government and states, and even between different parts of federal law, when it comes to investigating assault claims that often boil down to drunken “he said, she said” disputes.
Like its Senate counterpart, the House Education and Workforce Committee is holding hearings on the reauthorization of the Higher Education Act, including possible revisions to procedures on sexual-assault investigations.
Colleges need ‘presumptions of good faith’ when they are scrutinized after the fact
Republican Rep. Virginia Foxx of North Carolina, chairman of the Higher Education Subcommittee, emphasized in her opening statement that colleges don’t like the Obama administration’s “one-size-fits-all regulatory approach” to sexual assault and “maze of legal requirements” faced by students, administrators and faculty.
Reports of campus sexual violence “are not straightforward” and usually involve students who know each other, drank too much alcohol and end up in “word-on-word conflicts” with impaired memory, Dickinson College General Counsel Dana Scaduto told the subcommittee.
Reports “may not be made for days, weeks or months,” hampering the ability of campus officials to investigate, said Scaduto, the former president of the National Association of College and University Attorneys.
Taking action against accused students “before any determination of responsibility has been made” – as federal guidance requires – may leave them unable to graduate or complete a class, she added.
Scaduto criticized the Department of Education’s Office for Civil Rights (OCR) in particular for not giving colleges an opportunity for feedback – known as notice-and-comment, andarguably required by federal law – before issuing new guidance, such as its 2011 “Dear Colleague” letter on sexual assault.
Congress should provide colleges a “safe harbor” that gives them “presumptions of good faith when reviewing our conduct,” such as choosing to launch an investigation “over a victim’s objection,” and protects them from penalties or actions by OCR, Scaduto said.
Rise of the ‘amateur systems’ to deal with rape claims
Much of the hearing pitted Joe Cohn of the Foundation for Individual Rights in Education (FIRE) against other witnesses and lawmakers, most contentiously on the subject of mandatory reporting of assault allegations.
Two bills introduced this summer, the Safe Campus Act and Fair Campus Act, require alleged victims to file police complaints, even if they don’t cooperate in the resulting investigation, before pursuing complaints through their colleges.
Courts have repeatedly held that colleges must give “meaningful” due process to accused students, illustrating the “competency gap” between what campus officials can do well and what OCR demands of them, Cohn told the subcommittee.
College investigations deliver “unreliable findings” because they don’t have the power to obtain forensic evidence, serve subpoenas, put witnesses under oath and keep only relevant evidence in consideration, Cohn told Chairman Foxx when she asked him to explain “amateur systems” of justice.
Yet schools have enforced their own codes of conduct, which include sexual behavior, for decades, countered Lisa Maatz, the top lobbyist for the American Association of University Women, objecting to Cohn’s description of their investigations as amateur.
Colleges must protect the civil rights of students and consider how alleged assaults affect the entire campus, Maatz said. Mandatory reporting of assault is “a great way to insure that [victims] don’t report to anybody,” she said.
Ranking Member Rubén Hinojosa, D-Texas, also took issue with Cohn, asking why it should be harder for colleges to punish offenders.
“I think reliability in outcomes makes campuses safer,” because it ensures that actual rapists don’t end up on the street, Cohn said. Hinojosa said he disagreed because the number of colleges under federal investigation for failing alleged victims has “doubled, tripled, quadrupled.”
Two lawmakers came to Cohn’s defense. Rep. David Roe, R-Tenn. and an obstetrician-gynecologist, said he had examined women who were victims of assault. Echoing Scaduto, he noted his own fear of violating conflicting laws if he reported an assault.
Rep. Matt Salmon, R-Ariz. and a cosponsor of the Safe Campus Act, asked whether anyone had data on the number of victims who don’t initially report their assaults and then later change their minds.
Salmon worries that the “confidential advisers” that many campuses provide to alleged victims are talking them out of reporting their assaults. “All the forensics is lost” when victims belatedly file their complaints, he said.
Cohn said there are no data on why prosecutors decide not to bring sexual-assault cases but said that in some cases, “it could be because of spoliation of evidence.” Even though victims may think they’ll get a raw deal if they go to police, “there’s no way to build up more trust with police than to work with them,” he said.
‘Get rid of all 10 people’ when eight are known to be innocent
The biggest fireworks of the hearing came near the end, when Rep. Jared Polis, D-Colo., suggested that the OCR-mandated preponderance-of-evidence standard was too generous for accused students.
Under that standard, a campus panel adjudicating a case would find a student “responsible” for assault if it’s 50.01 percent confident that the student did it.
Polis asked Cohn why a private institution couldn’t use an even lower evidence standard such as “reasonable likelihood.” Cohn said that depending on how an investigative process is structured, even the preponderance standard could fail the legal test of due process.
In a statement that immediately went viral, Polis hypothesized that “if there’s 10 people that have been accused, and under a reasonable-likelihood standard maybe one or two did it, seems better to get rid of all 10 people.”
Unlike going to jail, “we’re talking about their transfer to another university,” Polis said, provoking the only audience applause at the hearing.
Cohn rebuked Polis. “When students get expelled it tracks them for the remainder of their life,” preventing them from getting a security clearance among other consequences, he said: Their testimony in a supposedly educational hearing may also be used against them in a criminal trial.
News flash to Congress: Americans don’t want colleges handling rape
Even though Cohn was outnumbered at the hearing, his organization took solace in theresults of a new survey conducted by the firm founded by Bill Clinton’s former pollster, Mark Penn, that was commissioned by the Fraternity and Sorority Political Action Fund.
Soon after the hearing concluded, FIRE noted that the Penn survey found 91 percent of likely voters think “local law enforcement and district attorneys” should be “primarily in charge of investigating alleged sexual assaults on college campuses.”
Nine percent said “administrators at colleges and universities” should have that role. The results were nearly the same for men and women.
“While FIRE has been criticized for taking this position (including by opposing advocates at a Congressional hearing today), we had a feeling—and a great deal of anecdotal evidence—that most people agreed with us that when it comes to sexual crimes, law enforcement should be taking the lead,” Executive Director Robert Shibley wrote.
The survey also found 91 percent of likely voters thought accused students in campus proceedings “should have the right to access counsel at their own expense” – 56 percent “strongly” in support, 35 percent “somewhat” in support.
The gender gap was greater in this question, with women slightly less supportive but more divided between “strongly” and “somewhat” answers.