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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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