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Author: Peter Novak

Proposed Legislation Limits University Investigations
Posted by On Thursday, August 20, 2015

Rusted gated chained and locked shut

Two recent bills winding their way through congress could have serious implications for investigations of sexual assault at colleges and universities if they become law.

These two new bills would limit not only when a university could investigate a reported sexual assault, but also the type of sanctions that could be imposed on fraternities / sororities when one of its members is under investigation or found in violation of an institution’s code of conduct.

The two new bills titled the Safe Campus Act and the Fair Campus Act would prevent college investigations if the victim of a sexual assault chooses not to report it to local law enforcement. Not only that, but the “the institution may not initiate or otherwise carry out any institutional disciplinary proceeding with respect to the allegation, including imposing interim measures.” In some instances, these bills directly contradict mandates issued in Title IX that may require an institution to investigate even if the claimant does not wish it to. The arguments for the potential new laws hinge around a common refrain that will be familiar to Title IX coordinators and directors of student conduct around the country: “Universities don’t investigate murders and other serious felonies, why should they investigate and punish students without due process for something as serious as sexual assault?”

Universities establish their own codes of conduct to create safe and respectful living and learning environments. The processes for deciding whether or not a student is in violation of the university’s student conduct policies are different from the criminal justice system, and should remain that way. Decisions made by a university’s conduct process are internal, and not viable as civil penalties. A university can often take action when the criminal justice system cannot, and the university should maintain the ability to remove students for violating its terms of conduct and behavior on campus.

A student may have many reasons for not wanting to report an assault to local law enforcement. If universities have been criticized for mishandling sexual assault investigations, the criminal justice system is far more arcane, cumbersome, and complicated. Even when an assault is reported, it is unlikely to lead to arrest and prosecution. And with 400,000 untested rape kits throughout the United States, it’s difficult to imagine someone placing all or even any their trust in the civil justice system.

Contrary to most institution’s adjudication processes, the new bills also allow for greater participation from lawyers (hired at the expense of the complainant and respondent) who may now ask questions, file relevant papers, examine evidence, and examine witnesses (including the complainant). The new bills fundamentally change the institutional procedure into a duplicate of the courtroom environment. And it would be easy to see how complicated and unfair it might be for a student of means to hire an attorney (no matter which side they are on) if the other student cannot afford to do so. In my experience as a VP of Student Affairs at an urban private school, there were many instances where a complainant did not want to file a report against another student because the respondent had the ability and money to hire professional legal counsel.

Critics will counter that, with such high stakes on the table if someone is found in violation of a university’s sexual assault policies, lawyers are there to protect students from both sides. The recent prominence of lawsuits by students accused of assault exposes the enormous pressure that universities are under from both complainants and respondents. As the Huffington Post has reported, no higher education trade group has yet supported these bills; universities already recognize the complexities of these new governmental regulations and the importance of sustaining a process that is fair to everyone involved. Some common sense provisions, such as ensuring that university personnel do not fill dual roles (i.e., an investigator should not be an adjudicator, or a victim’s advocate should not be an appeals adjudicator) are included in the bills, but these are commonplace.

Though universities have attempted to remove many barriers for the reporting of sexual assault (which remain significantly underreported), they must remain committed to creating a system that ensures fairness for both claimants and respondents. In the face of an increasingly complex regulatory system and with conflicting interests, universities remain in an untenable middle. It would be nice to get clarity around the current regulatory scheme rather than limits to the response of the university.

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Why Parents Matter: New Partners in Sexual Assault Prevention
Posted by On Wednesday, July 29, 2015

Red Converse

The decline of universities serving in loco parentis (in the place of parents) began in 1961 with the Dixon versus Alabama case that propelled due process for students into the limelight. Since then, universities have sought to keep parents at arm’s length. Orientation programs are designed to separate students from parents and ensure that parents leave their children as soon as possible so that the process of becoming a college student can begin. And universities use FERPA as a tool for keeping communication solely with the student and the university, despite parents’ objections to the contrary. But recently, parents have emerged as a focal point again for universities who see the value in partnering with them on a variety of strategies: for better 4-year graduation rates; for meeting university deadlines, policies, and procedures; for additional funding opportunities; and for helping their students succeed overall.

Rather than parents hesitating to send their students to college for fear of sexual assault, let’s invite them into the dialogue, and discuss ways they can help us change the culture together. Recent studies have shown that parents can have an effect on reducing not only binge drinking, but also non consensual sexual activity related to binge drinking.

In “Do Parents Still Matter? Parent and Peer Influences on Alcohol Involvement among Recent High School Graduates” published in the Psychology of Addictive Behaviors, the authors found that perceived parent involvement leads to weaker peer influence and related alcohol use and associated problems. And in “Preventing College Women’s Sexual Victimization through Parent Based Intervention: A Randomized Control Trial,” authors Maria Testa, Joseph Hoffman, Jennifer Livingston, and Rob Turris designed a Parent Based Intervention (PBI) to reduce the incidence of alcohol-involved sexual victimization among first-year college students. Students who had conversations with mothers that received the PBI (an educational handbook) saw lower incidences of incapacitated rape.

With the enormous responsibilities and pressure that colleges are facing, it might be daunting to consider adding yet another subset to training and education around sexual assault. Some states, like New York, are even requiring that parents become a part of the college’s educational platform. Asking parents to be a part of your institution’s sexual assault prevention program, however, can be an important part in your prevention toolkit, and it can serve the dual purpose of helping to communicate your institution’s commitment to the issue. With myriad ways for universities to include parents (from admission events to orientation programs, and even a simple letter with resources and guides), the changing culture around parent involvement just might help us also change the culture on sexual assault.

For more resources and our webinar on getting parents involved click here.

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Trigger Warnings** and Academic Freedom
Posted by On Friday, July 10, 2015

hands holding butterfly

The American Association of University Professors (AAUP) recently issued a statement that trigger warnings in course syllabi are a threat to academic freedom. The statement comes from the subcommittee of Committee A on Academic Freedom and Tenure, and was approved by the larger committee. Central to the committee’s finding was the expansion of the original practice, intended for those who have experienced a sexual assault, to include a broader range of issues such as racism, classism, sexism, and other forms of oppression like colonialism, white privilege, and more.

The committee challenges the idea that such warnings are appropriate in the first place, writing, “the presumption that students need to be protected rather than challenged is infantilizing and anti-intellectual.” The authors include language also used by sexual assault advocates, only in reverse, saying that the “demand for trigger warnings creates a repressive, ‘chilly climate’ for critical thinking in the classroom.” Ultimately, they believe that trigger warnings are a mode of censorship that imposes a value system on content and reduces students to the status of victim.

As a tenured full professor myself, I understand how faculty members might feel that an administrative requirement for a broad range of trigger warnings infringes upon academic freedom. I get it. However, I believe that the early ideas proposed by advocates of sexual assault to voluntarily include trigger warnings for sexually explicit or violent themes in the classroom recognizes the growing numbers of veterans in the classroom as well as survivors of sexual assault. The committee goes so far as to say, “the classroom is not the appropriate venue to treat PTSD, which is a medical condition that requires serious medical treatment.” Of course the classroom isn’t a venue to treat PTSD, but students diagnosed with it might be better served by faculty members who understand how it affects students’ learning in their classrooms rather than faculty who dismiss the practice of trigger warnings altogether.

The AAUP’s statement says that trigger warnings are a way of displacing the problem of sexual assault and “locating its solution in the classroom.” If only it were that simple. Administrators know that there is no easy solution to preventing or diminishing alcohol/substance abuse and sexual violence. What they are looking for are partners who recognize that complex social problems need to be addressed comprehensively. What administrators are really looking for is faculty who are proactive and productive partners in the effort to reduce the impact of violence on campus.

The full AAUP report can be found here: http://www.aaup.org/report/trigger-warnings.

**Think About It includes a trigger warning that precedes the “Bleak Friday” section of the course, and provides RAINN’s 24/hr telephone number as a resource.

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