Joining the editorial boards of the Los Angeles Times and the Orange County Register, columnist Debra Saunders took to the pages of the San Francisco Chronicle yesterday to criticize California legislation that would require colleges and universities receiving state funds to adopt an “affirmative consent” policy for campus sexual misconduct.
FIRE criticized the legislation, Senate Bill 967, in a statement issued earlier this year. The bill has passed both houses of the California State Legislature and now awaits action from Governor Jerry Brown.
Examining the legislation, Saunders writes that supporters of the bill are well-intentioned, but she concludes that SB 967’s approach is “doomed to fail” because
[c]ollege administrators are not law-enforcement officials - and their legitimate desire to protect victims not only from their attackers but also from the harsh scrutiny of a criminal investigation undermines the chance of a successful prosecution.
Saunders notes that when colleges are instructed to establish an alternative justice system on campus, meritorious cases are diverted from the criminal justice system:
"Not Alone," a White House report on campus sexual assault, exposes the problem. Many victims "want time and privacy to sort through their next steps," says the report - and that's OK. The problem with that approach, notes Joe Cohn, policy director for the Foundation for Individual Rights in Education, is that delay means that victims do not provide vital forensic evidence in a timely manner.
Schools should be sending these cases to police first and foremost, Cohn told me.
As FIRE has argued before, college justice systems lack both the procedure to fairly adjudicate such serious allegations and the power to properly punish those found guilty. Nevertheless, SB 967 doubles down on colleges’ questionable ability to try students for heinous crimes. As FIRE’s Joe Cohn told Saunders, SB 967 is likely to spur further lawsuits if passed:
Cohn is concerned that the bill shifts the burden of proof from the accuser to the accused - which invites academic tribunals to serve as star chambers that begin with a presumption of guilt.
Cohn concluded, "It will result in more expulsions. It will result in more litigation. It's not going to take more predators off the street."
Read Saunders’ full op-ed here. FIRE will continue to monitor the legislation’s progress.