Sexual Assault Public Shaming Bill: Well-Intentioned, But Misguided

January 18, 2016

Last week, Representative Jackie Speier of California took to the floor of the U.S. House of Representatives to announce her intention to introduce legislation that would “require universities to inform other universities of the results of a [campus sexual assault or sexual harassment] disciplinary proceeding.” According to Representative Speier, “When students, faculty or staff whose conduct violated Title IX transfer to another institution, the university they are moving to should be aware of their past conduct.”

It may seem appropriate, at first blush, to always share the findings of campus disciplinary hearings. But what if those findings are the product of a flawed hearing? As the American Association of University Professors’ (AAUP) Anita Levy told Inside Higher Ed, sharing information about disciplinary sanctions is problematic “when the original proceedings may have been severely lacking in procedural protections, and thus the findings questionable.”

The fact is that campus hearings regarding allegations of sexual harassment and sexual assault often offer minimal due process protections—and that’s putting it charitably. Without adequate procedural safeguards, there is simply no reason to assume that the findings reached in those hearings are consistently reliable. Until that is changed, requiring institutions to share their findings with other institutions will inevitably result in questionable findings following individuals for the rest of their lives and destroying careers.

While obviously a concern for students, the problem would be particularly acute for staff and untenured faculty who don’t typically possess the employment protections enjoyed by those with tenure, and for colleges, which are likely to face massive damages claims by the unjustly dismissed given the easy-to-prove effect on future income. Ultimately, sharing campus findings without fixing the current procedural deficiencies of campus disciplinary hearings amounts to little more than public shaming. While that can be effective, those doing the shaming have the responsibility to ensure that the person being shamed actually deserves it—and colleges have done shockingly little in that regard.

The concern that institutions make unreliable findings of guilt in sexual harassment claims against faculty and staff is not hypothetical. FIRE has tracked and exposed numerous examples, like that of Professor Jammie Price, placed on administrative leave by Appalachian State University after students alleged that she had created a hostile environment and strayed from the syllabus in her introductory sociology class; Professor Teresa Buchanan, found responsible for sexual harassment and fired by Louisiana State University for occasional profanity and jokes; and Theater and Dance Professor David Hillman, a single father who also worked part-time as a campus janitor, who was recently found responsible of creating a hostile environment and fired from both jobs by Saint Mary’s University of Minnesota over the mere use of phallic shaped props in a play he directed called Medea: A Virgin’s Voice. For all of these people, Rep. Speier’s bill would guarantee that they would never be able to escape an unjust scarlet letter.

Representative Speier’s idea should only be considered if it is accompanied by the implementation of substantive procedural due process protections lacking today, such as the right to have legal representation and the right to review the evidence in the university’s possession. As always, FIRE would welcome the opportunity to work with Representative Speier or her colleagues to ensure that campus procedures are fair to all.