Lawyers representing colleges have a host of worries about if and how their institutions can possibly meet a burgeoning list of federal rules for dealing with sexual violence on campuses.
The new, and still evolving, laws and guidelines have set off a scramble at institutions across the country. Colleges that can afford it are hiring staff members to investigate and help resolve sexual-assault complaints. Smaller institutions that may not be able to afford to hire their own staff are pondering alternatives, such as collaborating with other colleges. Nearly every institution is poring over its policies and procedures for how to manage cases of sexual violence.
OK, let’s stop right there and pause for a moment. Is there another institution in the world that gets to have its own “rules, guidelines and policies” concerning sexual assault or violence in its midst? Is there another organizational entity that has to have its own “sexual assault policy” that is somehow outside the bounds of what the law proscribes concerning sexual assault?
If an employee at Google or Home Depot is sexually assaulted at work, would the police turn over the investigation to the company and tell them to adjudicate guilt or innocence using their own “judicial review board”? If you were sexually assaulted at a Braves game, would the Braves get to decide the validity of the claim? If a high school student is sexually assaulted, do we convene a “judicial review board” made up of the principal, a teacher, a student and the janitor to decide guilt or innocence?
Of course not. The police would be called in those instances and trained investigators, experts in physical evidence and in working with victims of sexual assault, would decide whether to make an arrest. And then trained prosecutors would decide whether there was evidence enough to move forward with a prosecution.
But that’s not what happens to victims of sexual assault on campus. Instead, we have created this fantasy world, this extra-legal bubble around colleges and universities where victims of sexual assault have somehow forfeited their 14th amendment right to due process and often endure re-victimization at the hands of university bureaucrats.
In conversations with lawyers here at the annual meeting of the National Association of College and University Attorneys, nearly all stressed that colleges want to protect students from sexual violence, and that it is the right thing to do. But even as colleges work to do so—and to meet the administrative and legal requirements that now entails—lawyers here expressed frustration that their institutions were being held to a different standard than even law-enforcement agencies and were being given increasingly complex rules that sometimes go well beyond their capacity.
It goes beyond their capacity because there is not one single qualified individual on a college campus to sit in judgment of such a criminal matter. Not one. That’s a matter that should be left to trained judges in our criminal courts. Bringing in university or college Legal Department lawyers, who claim they want to protect the students, is an insult. These are are the last people who should be involved because university lawyers have only one primary responsibility: to protect the university. Not you.
The pressure on colleges to respond more comprehensively to sexual assaults has been increasing since 2011, when the U.S. Department of Education’s Office for Civil Rights sent a letter to campuses explaining that a college’s mishandling of complaints could lead to a finding that it was in violation of Title IX of the Education Amendments of 1972, which prohibits gender discrimination at educational institutions that receive federal money.
That pressure has grown significantly in recent months. In May the Education Department announced that the Office for Civil Rights was investigating more than 50 colleges for possible violations of Title IX in their handling of complaints of sexual violence or harassment. The number of colleges under investigation has since grown to more than 60.
In Apri, (sic) the White House issued stringent guidelines designed to help colleges prevent and respond to sexual violence and to offer students a “road map” for filing complaints against institutions that fall short in their responses.
Incredibly, all of this federal morass of guidelines, investigations and threats confuses sexual assault/violence with sexual harassment in the workplace. The latter is definitely the purvey of college and university boards to police and handle as they see fit. However, sexual assault on campus is not a “gender discrimination” issue. It’s a crime.
This is very simple: victims of sexual assault should notify the police. And if they choose not to notify the police and instead inform someone at the college or the university, the appropriate measure at that point is for the college or university to bring in the police and determine what happens next.
For those who worry about the nature of “he said, she said” claims involving college students, drinking, etc., (incredibly and stupidly articulated by the brain dead George Will recently) again, this should quite clearly play itself out in the criminal justice system, and not be adjudicated by a university administrator, a professor, a student, and a university lawyer (which sounds like the beginning of a bad joke, frankly). As agents of the university, none of those people is qualified to determine what happened in a sexual assault case, and the lack of oversight (and incriminating, blame the victim mentality that seeps into these informal hearings, none of which is made public) is beyond problematic.
Sexual assault and violence on campus is not a civil rights issue. It’s a criminal issue, and as such should be handled in the criminal justice system. Period.
Cross Posted From: The Power-Elite