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 Wendy Kaminer in The Atlantic
If you take seriously statistics indicating persistent violence against women on college and university campuses, you have to acknowledge that disdain for due process and onerous restrictions on speech and belief that have long prevailed on campus do not alleviate sexual violence. Arbitrary, unfair disciplinary procedures, expansive speech and harassment codes, and intrusive “sensitivity trainings” have denied students fundamental freedoms for years, in the hope of creating “safe” and “nurturing” environments for women and other presumptively vulnerable groups. Yet, according to frequently quoted Justice Department studies, 20% to 25% of women on campus will be the victims of sexual assault this year. Recent campus murders, rapes, and alleged rapes dramatize these frightening statistics.
Since restricting fundamental liberties doesn’t alleviate violence, it stands to reason that respecting fundamental liberties doesn’t cause violence. But hostility or at best obliviousness to free speech and disregard for the rights of students accused of misconduct persist anyway (as the Yale Title IX complaint and recent directives from the Department of Education demonstrate). It’s discouraging but not surprising that a new, well-intentioned bill aimed at curbing sexual violence on campus may inadvertently do more to encourage unfair prosecutions of students accused of misconduct and additional intrusions on freedom of belief.
The Campus Sexual Violence Elimination (SaVE) Act, introduced in the Senate by Pennsylvania Democrat Bob Casey (similar legislation has been introduced in the House) requires schools to include incidents of alleged sexual violence in their annual crime reports and to develop and distribute (to students and federal authorities) policy statements outlining their sexual violence prevention programs and procedures for addressing allegations of assault, stalking, and other violent acts. What’s wrong with these requirements? In general they seem reasonable, even necessary and virtuous. Casey’s deputy chief of staff calls the bill a “no-brainer,” and opposing it, you do risk being accused of supporting sexual violence. But a general account of the bill is un-revealing. Its disregard for individual rights is in the details — specifically the detailed procedural and programmatic mandates.
The SaVE Act implicitly assumes the guilt of students accused of sexual violence or stalking and ensures that guilt is fairly easy to establish. It requires schools to employ the lowest possible standard of proof — a preponderance of evidence — in disciplinary hearings. This requirement conforms to a recent Department of Education directive, which seem likely to result in a repressive crack-down on alleged sexual misconduct. Critiquing the new rules, former Department of Education official Hans Bader stresses that “‘preponderance of the evidence’ means that if a school thinks there is as little as a 50.001% chance that the accused is guilty, the accused must be disciplined.” It also means that students may be found guilty of conduct that constitutes a criminal offense, expelled, and exposed to civil and criminal liability without any of the protections afforded criminal defendants in formal judicial proceedings, including representation by counsel.
The SaVE Act’s assumption that untested accounts of victimization are accurate and true is also evident in the procedures schools must adopt upon receiving reports of violent offenses. The self-identified victim (who is nowhere in the bill accurately described as an “alleged victim”) must receive an explanation of his or her rights, information regarding counseling and the assistance of victims’ advocates, and options for changing residence or class schedules. What’s objectionable about these provisions? They provide alleged victims with rights to information and assistance that may not be provided to their alleged assailants. The SaVE Act does not require school officials to extend similar consideration to students accused of serious misconduct — perhaps wrongly. Schools may choose not to inform accused students of their rights (of course they have relatively few) or to advise them about counseling or schedule and residency change options.
Violence prevention programs mandated by the SaVE Act are almost as worrying as the mandatory disciplinary proceedings. Schools must conduct prevention and awareness programs for all new students and employees. In addition to providing relatively objective information about reporting, protective measures, and disciplinary procedures, administrators must lay down the law on highly subjective matters, like “the elements of healthy relationships” and “bystander intervention” — the “safe and positive options” open to someone who perceives a risk of violence or stalking.
Prevention programs must also include a “definition of consent in reference to sexual activity,” a requirement reminiscent of the notorious, unself-consciously absurd sexual consent guidelines issued by the late Antioch College in the 1990s. Its detailed prescription for consensual sex included these mandates: “The person(s) who initiate(s) the sexual activity is responsible for asking for consent. The person(s) who are asked are responsible for verbally responding. Each new level of sexual activity requires consent.”
Policies like these are easily mocked, but there’s nothing funny about the prospect of enforcing them with little regard for due process. Requiring schools to define healthy relationships and encourage bystander interventions is equally un-amusing. The requirement threatens freedom of speech and belief. Given the general fear and loathing on campus of offensive or demeaning speech, bystander intervention guidelines may well encourage students to equate the risk of violence with the expression of sexist or homophobic speech and ideas. Official definitions of “healthy relationships,” which students would decline to adopt at their peril, are especially troublesome. They bring federal and school officials into the bedroom (enlightened self-interest should make feminists especially wary of them) and seem destined to violate the freedom of conscience of students who harbor religious objections to homosexuality or sexual equality in heterosexual relationships.
Legislators and bureaucrats should not need to be reminded that students have fundamental rights to formulate their own definitions of healthy relationships. Of course they have no right to engage in violence or stalking, but even if there were some arguable correlation between particular concepts of sexual relations and incidents of violence it would not justify suspending basic rights of speech, belief, and intimate associations, anymore than controversial theories about correlations between pornography and violence justify censorship. Correlation is not causation, much less the direct and immediate showing of causation required under the First Amendment (which binds public colleges and universities, not to mention the federal government).
The preservation of individual liberty rests in part on the modesty of government officials and their willingness to aim laws at human behavior, not human nature or belief. Explicitly positing the laudable but Utopian goal of eliminating (not lessening) sexual violence, the SaVE Act is an immodest bill; it requires school administrators to address violence by doing nothing less than “changing social norms.”
Imagine Congress enacting a law dictating social norms and definitions of healthy relationships, by which we are all required to abide. The SaVE Act goes nearly this far; it would impose definitions of healthy relationships, attitudes, and social norms on undergraduate students through the intermediary of school administrators, who will be guided, as usual, by highly risk averse lawyers intent on shielding schools from any remotely conceivable liability for failing to meet federal standards.
This is not idle speculation. Colleges and universities have engaged in violence prevention efforts similar to those required by this bill for years. Indeed, the basis for SaVE Act findings that only a minority of schools educate students about sexual violence, including date rape, is unclear, and my queries about these findings to Casey’s staff remain unanswered. Staffers at the Foundation for Individual Rights in Education (FIRE), who have long been monitoring “safe” (and “civil”) campus programs, are skeptical. Empirical evidence is scarce, but considerable anecdotal evidence suggests that “peer education programs on topics like date rape (are) common,” Samantha Harris remarks. Will Creeley “finds it unlikely that institutions as highly attuned to risk management as colleges and universities have committed to these kinds of training and educational initiatives in such low numbers.” But if it’s true that a majority of institutions have not developed sexual violence awareness and prevention programs, it is also true that existing programs have dramatically (and often stupidly) infringed on students’ individual rights. Still, the problem of violence persists.
In insisting that violence prevention programs on campus respect basic individual liberties I feel compelled to add that I’m neither denying nor dismissing the crime of sexual violence (I expect to be accused of doing so), nor am I suggesting that Congress avoid even trying to alleviate it. The SaVE Act is salvageable; the criticisms I’ve raised could easily be addressed without undermining the bill’s intent or altering its basic architecture. It reads like a bill that was drafted with the help of anti-violence groups (which have officially endorsed it) and little if any input from civil libertarians.
Where does the ACLU stand on the SaVE Act? So far I’ve received no response to my query about the organization’s position on this bill or my invitation to comment on it. Given the ACLU’s image as a vigilant and comprehensive defender of civil liberty, its silence on legislation like this translates into tacit support, especially in light of its explicit support for the Obama Administration’s similarly flawed sexual harassment guidelines for schools. Once the ACLU vigorously opposed anti-harassment or anti violence measures that gratuitously restricted basic liberties; these days it’s apt to ignore or support them. I mention this not for the sake of berating the ACLU (a pointless exercise) but to underscore the need for other civil liberties advocates — especially liberal civil liberties advocates — to step up where the ACLU has stepped back.
Protecting civil liberties on campus is a lower profile, less compelling cause than protecting liberty and the rule of law from the war on terror and the imperial presidency, obviously. And, for liberal civil libertarians, it’s a cause fraught with conflict. It requires imposing limits on the definition of civil rights and the power of government to enforce liberal ideals of social and even psychic equality. But the consequences of ignoring the decline and even disappearance of civil liberty on campus will reverberate off campus for years — in policies about national security, criminal justice, and restrictions on speech about politics, sex, and sexuality. Students who are trained to disregard due process rights and fundamental freedoms of speech, conscience, and belief today will be leading civil liberties advocacy groups or writing, enforcing, and reviewing the constitutionality of laws tomorrow. Sadly, sometimes it seems that tomorrow is already here.