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By Libby Nelson at Vox.com
The federal government has put campus sexual assault front and center. “It’s up to all of us to put an end to sexual assault,” President Obama said in a public service announcement on the issue.
But whether colleges can deal with their sexual assault problem will ultimately be up to the colleges themselves.
The Education Department has two tools in its arsenal to punish colleges for violating Title IX, the federal law that forbids sex discrimination in education. The first is collecting information and making it public, as the department has done by listing colleges under investigation.
The other is denying a college’s eligibility to participate in federal financial aid programs — a decision that implies a violation was so egregious that the college should not be allowed to stay open.
Advocates for survivors argue that the Education Department can, and should, fine colleges for their transgressions. But the department doesn’t interpret Title IX that way. The government sees a justice system with only two options, and one is akin to the death penalty.
That’s why, in every Title IX case so far, the department and the college under investigation have reached an agreement on how the campus will change its policies on sexual assault. Will those agreements really lead to change?
“People are working day and night to try to create better systems… but at the end of the day, the question will be, is that model going to be what they want, which is one that protects victims but gets perpetrators off campus?” says Peter Lake, a law professor at Stetson University who directs the Center for Excellence in Higher Education Law and Policy.
“It’s not for lack of effort, it’s not for lack of sincerity. It’s just not clear it’s going to work.”
The public relations problem
Colleges, particularly the elite, selective colleges that dominate the Education Department’s investigations list, are often caricatured as oversensitive to students’ needs. But sensitivity is hardly the defining feature in survivors’ complaints about how colleges have handled sexual violence.
The complaints against these universities detail dismissiveness from college staff and describe discipline proceedings that find assailants responsible for sexual assault but don’t dole out meaningful punishment.
One possible explanation for this is colleges are concerned about their public image at all costs.
The most extreme example is the child sexual abuse scandal at Pennsylvania State University. Revelations that an assistant football coach sexually abused young boys, and that top administrators were told of his crimes but did not report them, led to criminal charges for the university’s former president.
Colleges are required to disclose crimes that happen on or near campus, and can be fined if they don’t. Although the Penn State scandal didn’t involve students as assailants or victims, the university is also under investigation for violating Title IX.
“For a very long time, not just in higher ed but in general, you have this sort of ‘boys will be boys’ mentality: things happen on a college campus, people get drunk, and oh well,” says W. Scott Lewis, a partner with the NCHERM Group, a consulting firm that works on campus safety issues.
Presidents and boards of trustees are often concerned about the public relations consequences of a spike in reported sexual assaults, which can happen if they change policies in order to support victims, Lewis says.
But now they must also deal with the public consequences of doing nothing.
One college president Lewis worked with faced criticism for intervening in favor of lighter sanctions for a student found responsible for sexual assault. The president, as Lewis tells it, said he’d done the same thing before with little outcry.
“For a long time, you were on the wrong side of a winning argument,” Lewis says he told the college president. “Now you’re on the wrong side of the losing argument. You’re defending the rapist.”
Sexual assault is dealt with in a system designed for lesser transgressions
Campus systems are ill-equipped to handle an issue that can confound even criminal justice courts.
Prosecutors can decide not to bring a case for lack of evidence. If they’re aware of a complaint about sexual assault, though, colleges are legally required to deal with it. And so the issue ends up in a campus discipline system more accustomed to dealing with underage drinking or plagiarism than sexual violence.
At a typical four-year residential college, the campus justice system includes a panel of faculty, staff, and sometimes students who hear allegations and decide what punishment students should face. They can question both the student making allegations and the alleged assailant.
That kind of questioning might make sense for a case of plagiarism, Lewis says. But for sexual assault, the result can be a disaster — like a courtroom where the jury, not just the lawyers, can pepper students testifying with questions.
That’s why the White House is encouraging colleges to designate one investigator to report on sexual assault allegations.
But civil liberties advocates worry this will interfere with due process for students accused of sexual assault. Colleges already can find a student responsible for sexual violence if there is more evidence in favor of the accusation than against it, a much lower standard than applies in criminal court.
Relying on the judgment of a single investigator allows one person “to serve as detective, judge and jury, affording the accused no chance to challenge his or her accuser’s testimony,” the Foundation for Individual Rights in Education said in criticizing the White House task force’s recommendation.
“You walk a razor’s edge” in balancing those competing concerns, says Lake, the law professor. But he said he is hopeful that colleges will be able to come up with solutions if they’re serious about changing their culture.
Research from two academics on the bystander effect — why people witness a crime and do nothing — led to models of “bystander invention,” which many colleges are now adopting.
“That’s one of the most powerful tools” in the fight against sexual assault “and it came from within our walls,” Lake says. “I want to believe we can use our minds to overcome major social challenges.”
The Education Department has received more complaints about how campuses handle sexual violence in the past six months than they did in the previous fiscal year. Complaints have increased steadily since the administration took office, according to data from a department spokeswoman.
Title IX, which forbids discrimination based on sex in education, requires colleges to protect their students from sexual assault and its aftereffects. Many survivors say they feel poorly served by campus justice.
Where are these complaints? The Education Department won’t release a complete list until later this week, but the Huffington Post has a map of where complaints have been reported so far.