By Jake New at Inside Higher Ed
Congressional Republicans on Wednesday introduced legislationdesigned to strengthen the due process rights of students accused of sexual assault and to prevent campus investigations from taking place unless a victim also reports the allegations to law enforcement. The bill would make it tougher to kick a fraternity or sorority off campus without a proper hearing, and bar colleges from forcing Greek organizations to become coeducational.
Civil liberties organizations and the lobbying group representing fraternities and sororities — a frequent financial contributor to one of the legislation’s sponsors — applauded the bill as providing an avenue for “much-needed reforms.” Campus safety groups and victims’ advocates decried the legislation as redundant and deleterious.
“I am both shocked and disappointed by the amount of Congress members who are proposing legislation without fundamental knowledge about the field of campus safety law,” Laura Dunn, founder and executive director of SurvJustice, said. “Campus safety advocates are going to have to be on the defense to prevent legislation that moves things backwards.”
Colleges are required by Title IX of the Education Amendments of 1972 to investigate and adjudicate cases of campus sexual assault. Facing pressure from the U.S. Department of Education’s Office for Civil Rights to improve their handling of these cases, institutions in recent years have begun more rigorously adjudicating sexual assault allegations.
While victims’ advocates say colleges still have a long way to go in addressing the needs and rights of students who have been assaulted, civil liberties groups argue that in their haste to comply with Title IX, colleges are increasingly trampling the due process rights of the accused. Several lawsuits in the last two years by male students who feel they have been wrongly suspended or dismissed over sexual assault allegations have helped reinforce such a notion.
Earlier this month, a ruling in a lawsuit against the University of California at San Diego bolstered the perception that accused students are not receiving a fair hearing.
The new legislation, called the Safe Campus Act, would address some of the complaints made by the UCSD student, including that he was unable to cross-examine crucial witnesses and that the university kept him largely out of the loop during the investigation and hearing. In a statement Wednesday, Joseph Cohn, legislative and policy director at the Foundation for Individual Rights in Education and a frequent critic of campus hearing processes, praised the legislation.
“FIRE has repeatedly expressed our reservations about entrusting universities to adjudicate allegations of serious felonies like sexual assault,” Cohn said. “But if they are to continue to hold this responsibility, basic fairness requires students be given tangible due process protections. The due process protections provided by the Safe Campus Act would enhance the reliability of campus proceedings and lend sorely needed credibility to their findings.”
Components of the legislation run contrary to some Department of Education regulations. The Safe Campus Act would allow an alleged victim to decide whether to involve police, but the college could not launch its own investigation unless the student chose to report the incident to law enforcement. Currently, colleges are required to conduct investigations even if police are not informed of the crime. An institution could still provide certain protections, such as ordering the accused student not to contact the alleged victim.
Many victims prefer not to involve police, as the process is much longer and involved than a campus investigation and it rarely results in a suspect being prosecuted. Some prefer to keep the investigation on campus, as they may personally know the alleged attacker, and while they want to see that person punished, they don’t want to send him or her to prison.
If an internal investigation does take place, both the accused and accuser would have the right to hire lawyers at their own expense, and both would be allowed to question witnesses. Colleges could choose what standard of evidence to use when deciding responsibility, rather than being required to use the lower burden of proof known as “preponderance of evidence.”
The stronger due process would also apply to student groups, not just individuals, meaning it would be more difficult to push a fraternity off campus if it is accused of sexual misconduct — a punishment that, according to student affairs officials, isalready rare at many institutions. The legislation would require a college to conduct a full discipline hearing before a chapter could be banned from campus. Interim sanctions, such as suspension, during this process could only last 10 days.
The legislation would also prohibit colleges from ordering fraternities and sororities to become coeducational. In September, following a series of alleged sexual assaults, Wesleyan University told its fraternities that they must admit women in the next three years. One of the chapters is suing the university, alleging the order is discriminatory.
The Fraternity and Sorority Political Action Committee lobbied Congress for many of the protections included in the new legislation, donating $500,000 to politicians in the last year. The legislation was introduced by Representatives Matt Salmon, of Arizona, and Kay Granger and Pete Sessions, of Texas.
According to the Federal Election Commission, Sessions has received more than $33,000 in contributions from the Fraternity and Sorority Political Action Committee since 2005. Sessions is also sponsoring a separate bill called the Fair Campus Act, which includes similar sexual assault policy changes and protections for fraternities and sororities. His co-sponsor on that legislation is Representative Susan Brooks, an Indiana Republican, who has received $10,000 from the FSPAC since 2012.
In a statement Wednesday, FSPAC leaders said that the legislation “enhances the rights of all students” and single-sex student groups, while improving campus safety.
“Over the past several years, it has become increasingly clear that there is an urgent need to improve the current process of handling sexual assaults on campuses,” Kevin O’Neill, FSPAC’s executive director, said in the statement. “We strongly believe that the Safe Campus Act proposes sound and effective solutions to address the current system’s flaws. It ensures that each student and student organization involved in a sexual assault case is treated fairly.”
The North-American Interfraternity Conference announced on Wednesday that it also supports the bill. Dunn, however, said the Safe Campus Act does little to keep campuses safe.
“It would be nothing short of absurd to regress to allow colleges to pick at will what standard of evidence to use,” Dunn said. “Why should a student at Harvard be protected more or less than a student at a community college? Regarding due process, many federal courts have reviewed and upheld the current levels of due process. Considering these are misconduct hearings governed by student conduct codes, it does not seem there is a justification for increasing due process.”