Joe Cohn: Apology Accepted, Rep. Polis, but You’re Still Wrong

By September 18, 2015

By Joe Cohn at Daily Camera

In a congressional hearing on campus sexual assault last week, Representative Jared Polis said something that should shock every American who believes in the presumption of innocence. Polis argued that colleges should expel students accused of sexual assault — even if there was “only a 20 or 30 percent chance that it happened.” According to Polis, if 10 students stand accused, and “maybe one or two did it,” the college should “get rid of all 10 people.”

So much for due process. Polis seemed to indicate that if he was in charge, he’d expel first and ask questions later.

Because I believe in fundamental fairness, and because Polis was questioning me when he made his astonishing argument on Capitol Hill, I was pleased that he offered an apology for his views in the Daily Camera this week. Characterizing his argument as a “major gaffe” that “did not convey my beliefs nor the policies I now or have ever supported,” Polis commendably owned up to his mistake.

However, Polis still rejects involving law enforcement in responding to campus rape — the one common-sense measure that would provide real justice for victims, ensure fair processes for the accused, and put rapists in jail. By insisting that college administrators adjudicate serious felonies, Polis doubles down on a failed policy that threatens students nationwide.

In his apology column, Polis writes that having campus rape cases tried by law enforcement professionals is “a deeply dangerous idea that demonstrates a cursory and superficial understanding of the issue.” This off-base characterization dismisses the expertise of leading victims’ rights organizations like the Rape, Abuse & Incest National Network (RAINN). Last year, RAINN told a White House task force that it is “imperative that colleges and universities partner with local law enforcement around these crimes — from the time of report to resolution.” As RAINN noted, “It would never occur to anyone to leave the adjudication of a murder in the hands of a school’s internal judicial process. Why, then, is it not only common, but expected, for them to do so when it comes to sexual assault?”

RAINN isn’t alone. Last month, the National District Attorneys Association — whose members know more about prosecuting crime than anyone — endorsed federal legislation that would prioritize the early involvement of law enforcement. Connecting victims with police quickly is crucially important. As Senator Sheldon Whitehouse, a former state attorney general, pointed out in a hearing last year on sexual assault, critical forensic evidence can be irretrievably lost, and successful prosecutions derailed, when law enforcement is sidelined.

Polis is also out of step with the general public, which doesn’t trust colleges to fairly adjudicate sexual assault claims. This summer, a nationwide survey found that 91 percent of likely voters believe that law enforcement, not college administrators, “should be primarily in charge of investigating alleged sexual assaults on college campuses.” And for the last two years, a Huffington Post/YouGov poll has found that less than 15 percent of the public thinks colleges do a “good job” of addressing sexual violence.

For anyone paying attention to colleges’ miserable track record on sexual assault, these results are hardly surprising. (My organization, the nonpartisan, nonprofit Foundation for Individual Rights in Education (FIRE), has been defending student due process rights for 15 years.) Colleges repeatedly fail both victims and accused students.

For example, the University of North Dakota expelled student Caleb Warner after finding him guilty of sexual assault — despite the fact that law enforcement had not only determined he wasn’t responsible, but had issued a warrant for his accuser for filing false charges. On the other side, Baylor University is drawing heavy criticism for failing to pursue charges against a student (and star football player), even under the low “preponderance of the evidence” standard, who was later found guilty in the criminal case against him. And last week, the University of Michigan settled a lawsuit brought by an accused student expelled for sexual assault. The school bungled the case so badly that the alleged victim issued a statement warning students and parents “to avoid reporting sexual violence or using the University’s Title IX process at all costs.”

The bottom line is that colleges are simply not equipped to handle these critically important cases. To the extent that the criminal justice system has failed to sufficiently and sensitively assist victims, we should fix it—not build a parallel justice system. Colleges are well positioned to provide remedial measures like changing class schedules and residential assignments, and connecting alleged victims with counseling. But serious crimes demand the police.

Joe Cohn is Legal and Policy Director for the Foundation for Individual Rights in Education in Philadelphia.