Sexual assaults on university campuses have become a hot topic in Washington, state legislatures, and in the news. With consistent reports (like this one from The New York Times) of institutions botching their responses to these cases, FIRE has long argued that campuses are ill-equipped to adjudicate these cases and that the guilt or innocence of those accused of such heinous crimes should be determined by courts with the help of law enforcement, forensic evidence, and all the structures of formal adjudications that make their findings more reliable. For a more detailed explanation of FIRE’s position on campus sexual assault, including our recommendations regarding the appropriate role of colleges’ internal judicial systems, check out the comment (PDF) we sent in February to the White House Task Force to Protect Students from Sexual Assault.
FIRE isn’t alone in our concern that college administrations are incapable of properly handling this tremendous responsibility. In an article in Philadelphia Magazine, Carol Tracy, Executive Director of the Women’s Law Project, mirrors FIRE’s concerns, stating that “My grave concern is the capacity, the competence, and the appropriateness of colleges dealing with rape outside the criminal justice system.” This concern was echoed even more forcefully by the Rape, Abuse and Incest National Network (RAINN) in its comment sent to the White House Task Force. There, RAINN wrote:
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? We need to get to a point where it seems just as inappropriate to treat rape so lightly. While we respect the seriousness with which many schools treat such internal processes, and the good intentions and good faith of many who devote their time to participating in such processes, the simple fact is that these internal boards were designed to adjudicate charges like plagiarism, not violent felonies. The crime of rape just does not fit the capabilities of such boards. They often offer the worst of both worlds: they lack protections for the accused while often tormenting victims.
These same serious doubts were also recently expressed by the American Council on Education (ACE), an organization that counts thousands of institutions of higher education amongst its membership, in a letter to the U.S. Senate’s Health, Education, Labor and Pensions Committee (HELP). In its letter, ACE explained:
Conducting education and providing information is an area where college officials have vast experience. We must redouble our education efforts on sexual assault, and as I noted earlier, institutions are moving aggressively to do this. But performing investigations and adjudicating cases is a far more difficult challenge. We lack the authority to subpoena witnesses, control evidence and impose legal standards. Our disciplinary and grievance procedures were designed to provide appropriate resolution of institutional standards for student conduct, especially with respect to academic matters. They were never meant for misdemeanors, let alone felonies. While we take our obligations to the victims/survivors of sexual assault very seriously and are fully aware of our responsibilities with respect to sexual assaults, our on-campus disciplinary processes are not proxies for the criminal justice system, nor should they be.
Complicating this further, colleges and universities vary greatly in their administrative sophistication. The array of institutions that comprise American higher education, from major research universities to small liberal arts colleges to community colleges to for-profit schools, differ enormously in their levels of expertise and resources available to fulfill their obligations. Notably, relatively few colleges have general counsels on staff, and almost none have independent investigatory arms.
Like FIRE, all of these organizations would like to see lawmakers adopt policies that make our campuses safer. We certainly think that colleges can and must perform a vital role in addressing this issue; we discuss the ways colleges should help in our comment to the White House Task Force. But policymakers should start listening to the voices of those who have observed the shortcomings and injustices that result time and time again when campus administrators—even those who are trying their absolute best—are left to decide these complex, crucially important claims.
Diverting these cases from law enforcement and actual courts who can lock perpetrators away is unwise and dangerous. Amateurs (especially those who may be biased) should not be entrusted with this massive responsibility. Students would be better off if the adjudications were left up to those who have the tools and expertise to handle them properly, not to mention the sanctions available to them to truly make our communities safer.