Last year, FIRE commented on the Campus Accountability and Safety Act (CASA), the bill spearheaded by Senators Claire McCaskill, Kirsten Gillibrand, Dean Heller, and Marco Rubio to address sexual assaults on college campuses. Yesterday, the senators introduced an updated version of the bill.
Like the original CASA, this new version contains some provisions that FIRE can support and some provisions that FIRE cannot support.
On the positive side of the ledger, the legislation would not codify the low “preponderance of the evidence” standard or mandate misguided "affirmative consent" policies. FIRE also supports the commonsense provision that prevents colleges from allowing athletic departments to conduct separate hearings for athletes accused of sexual assault. And while the bill still presupposes certain factual issues by referring to complainants as “victims” even in the pre-adjudication context, we are pleased to note that the updated CASA no longer presupposes the guilt of accused students by referring to them as “assailants.”
As with the last version, the most promising aspect of this version of CASA is that it would require institutions to enter into agreements with local law enforcement agencies to “clearly delineate responsibilities and share information” regarding crimes like sexual assault. Sexual assaults are felonies and should be addressed accordingly, whether they occur on or off campus. Formalizing the relationship between campuses and law enforcement agencies is a necessary step toward ensuring that these cases are handled with the expertise, experience, and resources that only the criminal justice system can bring to bear on these investigations.
Our optimism, however, is tempered by several troubling aspects of the bill.
Most broadly, FIRE is concerned that CASA still treats the problem of addressing sexual assault on campus like a one-sided issue of supporting victims, instead of attempting to protect the rights of both complainants and the accused. Though we are pleased that CASA now at least mentions due process, it certainly doesn’t outweigh our disappointment that the bill does not add meaningful procedural protections beyond those already codified in existing legislation.
The bill’s 51 pages contain exactly two references to due process:
WRITTEN NOTICE OF INSTITUTIONAL DISCIPLINARY PROCESS.—The institution shall provide both the accuser and the accused student with written notice of the institution’s decision to proceed with an institutional disciplinary process regarding an allegation of sexual misconduct within 24 hours of such decision, and sufficiently in advance of a disciplinary hearing to provide both the victim and the accused student with the opportunity to meaningfully exercise the due process rights afforded to them under institutional policy. The written notice shall include the following:
(C) The rights and due process protections available to the victim and the accused student, including those described in section 485(f)(8)(B)(iv) and any other rights or due process protections that the victim or the accused student may have under the institution’s policies.
So the bill provides both students with notice of the charges and sufficient time to “meaningfully exercise the due process rights afforded to them under institutional policy.” But what about students on campuses where institutional policies are inadequate or even biased on their face? CASA does nothing to help students attending institutions that don’t provide meaningful due process protections.
The bill also injects inequality into sexual assault proceedings. For one, it provides substantial resources—for example, a “confidential advisor”—to complainants without providing similar resources to the accused. This imbalance is potentially at odds with regulations implementing the reauthorization of the Violence Against Women Act (VAWA), which require colleges to provide “the accuser and the accused with the same opportunities to have others present during any institutional disciplinary proceeding, including the opportunity to be accompanied to any related meeting or proceeding by the advisor of their choice.” Additionally, the Department of Education’s Office for Civil Rights (OCR) has interpreted Title IX’s implementing regulations to require that colleges allowing advisors to participate “at any stage of the proceedings … must do so equally for both parties.” As OCR observes, “[a] balanced and fair process that provides the same opportunities to both parties will lead to sound and supportable decisions.”
Adding to the imbalance, the bill mandates that university employees responsible for “resolving complaints of reported sex offenses or sexual misconduct policy violations” must receive training on “the effects of trauma, including the neurobiology of trauma.” While trauma-informed training may be appropriate for first responders and those conducting initial interviews, providing that training to campus adjudicators potentially undermines the impartiality of the process.
FIRE is also concerned about the legislation’s penalty provision, which allows colleges to be fined 1 percent of their operating budgets per violation. While the drafters’ intention was likely to provide a more realistically enforceable penalty than the current penalty structure under Title IX—which subjects institutions to a loss of all federal funding—this provision potentially increases penalties. Federal dollars are only one source of funding for institutions. So for example, if the Department of Education finds more than 15 violations at an institution that receives 15 percent of its operating budget via federal funds, the potential penalty will be greater than it is under the current system. Indeed, OCR claimed to have found over 40 unique violations at the University of Montana in 2013. If OCR finds 100 violations at an institution, this legislation empowers the Department of Education to take its entire operating budget away. At least the new bill no longer allows OCR to keep the money it collects from these fines.
Finally—despite growing consensus across the country that cutting law enforcement out of the loop is dangerous for all involved, including future victims—CASA states that the “victim’s wishes” will determine whether an institution must cooperate with local law enforcement “with respect to any alleged criminal offenses involving students or employees.” As FIRE argued in our response to NASPA on the question of mandatory reporting last week, we strongly believe students who have committed violence or pose a serious threat of committing violence should immediately be reported to law enforcement. With limited exceptions, college administrators who witness or receive credible allegations of sexual assault or other violent criminal activity should be required to report such allegations to law enforcement. Mandatory reporting by college officials would ensure that law enforcement was never left in the dark about a potentially dangerous situation. For example, if campus authorities learn of credible accusations of a violent gang rape of one of their students, the law should require them to notify police so that they can take steps to ensure there are no ongoing threats to the safety of both the alleged victim and to others on campus.
FIRE is glad to see Congress grappling with this issue. We will continue to analyze the legislation as it progresses and look forward to working with Congress to ensure that any final legislation will address the needs of all students.