FIRE has been criticizing the Department of Education’s Office for Civil Rights’ (OCR’s) overreach with respect to its guidance on Title IX for several years. We have also been arguing that colleges and universities are ill-equipped to investigate and adjudicate allegations of campus sexual assault. In a scholarly article published by the Yale Law & Policy Review earlier this year, we gained a powerful new ally who agrees with our assessment on both fronts: Janet Napolitano, president of the University of California System and former secretary of the Department of Homeland Security.
Echoing many of FIRE’s concerns, Napolitano writes:
Unfortunately, OCR neglected to provide notice or an opportunity for comment in advance of issuing either the Dear Colleague Letter or the April 2014 Questions and Answers guidance regarding Title IX and sexual violence, even though both documents clearly imposed new mandates on schools. Campuses facing these new mandates had no opportunity to provide feedback for the Department of Education’s consideration prior to the issuance of the guidance documents and were left with significant uncertainty and confusion about how to appropriately comply after they were implemented.
Napolitano is exactly right. It cannot credibly be disputed that the April 4, 2011, “Dear Colleague” letter and April 2014 Questions and Answers guidance impose new mandates on institutions. That OCR is enforcing these mandates on institutions is also undeniable. OCR has repeatedly required compliance with the terms of these documents when strong-arming institutions into settlement agreements, and OCR Assistant Secretary Catherine Lhamon told the Senate that she expects institutions of higher education to comply with her Title IX guidance. (See this video at the 50-minute mark.)
Napolitano powerfully fleshes out the harm caused by imposing mandates without consulting stakeholders first:
The significance of the new legal requirements under Title IX and the Clery Act is that college campuses are being asked to serve in multiple roles—responsible for the prevention, investigation, and adjudication of sexual harassment and sexual violence. But the federal government’s expectations, especially related to investigations and adjudication, seem better-suited to a law enforcement model rather than a complex, diversely populated academic community found on a modern American campus.
Moreover, administrative investigators lack many of the tools necessary to meet the heightened expectations placed on them by these new regulatory requirements. For example, administrators have neither subpoena power nor the authority to issue search warrants.
Are these roles that are well suited for our nation’s institutions of higher education? Survivors are choosing not to report to law enforcement because of their lack of faith and confidence in the criminal justice system. If that is the case, it can be argued that rather than pushing institutions to be surrogates for the criminal justice system, more work should be done to improve that system’s handling and prosecution of sexual assault cases. Law enforcement has the tools to effectively investigate these crimes. The criminal justice process has the authority to impose serious punishments on offenders, including incarceration. The most serious sanction that a college can impose is dismissal, which is wholly inadequate where a crime has been committed. Having law enforcement conduct investigations ensures, if properly done, that effective investigations will be conducted and that there will be appropriate punishments that have a strong deterrent effect, all to the ultimate benefit of the survivors and the safety of the university community as a whole.
I could not have said it any better myself. (Believe me, I’ve tried!)
Check out Napolitano’s article—“‘Only Yes Means Yes’: An Essay on University Policies Regarding Sexual Violence and Sexual Assault”—in full.