Over the last few weeks, both chambers of Congress passed separate bills (S. 1925 in the Senate and H.R. 4970 in the House of Representatives) to reauthorize the Violence Against Women Act (VAWA). The two versions of VAWA passed by their respective legislative bodies have significant differences, primarily dealing with issues beyond the scope of FIRE's mandate to protect core civil liberties on university campuses. To be clear: FIRE takes no position on the vast majority of the provisions contained in either bill. Much of the controversy surrounding the two competing versions concern issues that are outside of FIRE's mission. As we've consistently stated, FIRE is concerned solely about the few proposals in the legislation that would negatively impact student rights on campus.
As passed, each version of VAWA includes aspects that FIRE is pleased to see included—but also language that would threaten college student rights. To clarify the outstanding issues that congressional negotiators must resolve when (or if) the bill eventually heads to conference, here is an analysis of the student rights issues presented by each bill.
On April 26, the Senate passed S. 1925, the language of which included elements of the Campus SaVE Act, legislation that had been proposed earlier without gaining traction on its own. FIRE strongly opposed the inclusion of the Campus SaVE Act in VAWA, at least in its original form, because it would have required colleges to conduct hearings regarding accusations of sexual misconduct using the judiciary's lowest standard of proof: the "preponderance of the evidence" standard. Under that standard of proof, a student could be held responsible for sexual misconduct and disciplined if the fact-finder concluded that the accusations were a mere 50.01% more likely to be true than false. Many commentators, including students and faculty themselves, have criticized using such a standard. For a full explanation of why FIRE opposes the preponderance of the evidence standard, check out this letter we wrote to the Department of Education's Office for Civil Rights (OCR), on May 5, 2011; this article we wrote last year; or this FAQ.
After FIRE took its concerns to the Senate, S. 1925 was amended to remove the provision that would have required universities to adopt the preponderance of the evidence standard, but one more troubling provision remains.
The remaining problem presented by the Campus SaVE Act provision in S. 1925 is that it also requires that both the accuser and the accused be granted the right to appeal a disciplinary finding—a threat to fundamental fairness prohibited in criminal hearings by the Fifth Amendment's bar against what's known as "double jeopardy." For the same reasons of fundamental fairness that our criminal justice system does not allow double jeopardy, colleges and universities should not force their students to face new hearings after being declared innocent. Although these disciplinary hearings are not formal criminal trials with the full scope of constitutional due process rights, these hearings are not, as proponents of the "double jeopardy" provision like to assert, comparable to civil suits either. (In civil suits, both parties traditionally have rights to appeal). For instance, unlike a defendant in a civil lawsuit, accused students are not afforded comparable procedural safeguards and cannot settle a case. Furthermore, a guilty finding in a university disciplinary proceeding will result not just in a loss of money, but in a permanent and life-altering stigma that will cause irreparable harm to a student's educational, professional, and social prospects, even if the finding is later reversed.
The final version of S. 1925, as passed by the Senate, included the problematic "double jeopardy" provision.
In the House of Representatives, the "double jeopardy" provision and the preponderance of the evidence provision were both cut before the House passed H.R. 4970 on May 16. However, a last minute amendment to the bill introduced a new threat to student rights. That new provision would create a "National Center for Campus Public Safety," and while that may sound like a good idea, the creation of such a Center would likely jeopardize student rights.
Per the language in the House's version of VAWA, the Center would issue "policies, procedures, and best practices relevant to campus public safety," including "effective behavioral threat assessment and management models," among other aims. However well-intentioned those aims might be, FIRE's years of experience defending college student and faculty rights demonstrate that "threat assessment" programs often abuse their power by monitoring, censoring, and punishing the peaceful speech of students and faculty members. One prominent threat assessment organization's model even identifies "harmful debate" and "wearing concealing clothing, such as hoodies," as risk factors worth monitoring. By endorsing similar models, the Center would likely extend university jurisdiction in unprecedented ways, requiring still more campus bureaucracy and raising college costs.
"Threat assesment" run amok is no hypothetical fear. In the fall of 2011, for example, a theater professor at the University of Wisconsin-Stout was censored twice, reported to the "threat assessment team," and threatened with criminal charges because of satirical postings on his office door, including a quote from the science fiction television series Firefly.
Similarly, former Valdosta State University student Hayden Barnes was expelled without a hearing after the university's president concluded that a cut-and-paste collage Barnes had posted on Facebook satirically protesting a proposed campus parking garage presented a "clear and present danger" to the campus. Barnes' ordeal began in 2007, and this past February, the United States Court of Appeals for the Eleventh Circuit affirmed a district court's finding that the then-president of the university could be held personally liable for violating Barnes' constitutional right to due process.
In addition, there is a risk that the Center's guidance would be given undue deference beyond its non-binding legal effect. For an in-depth look at how the proposed Center would threaten student civil liberties, take a look at this FIRE press release.
We are hoping that if either of the competing bills are accepted for conference committee, the members of Congress tasked with crafting a final bill will take our concerns into account. FIRE hopes that any version of a VAWA Reauthorization Act that ultimately becomes law will neither mandate "double jeopardy" nor create a National Center for Campus Public Safety that will undermine student and faculty rights and chill protected speech.