Federal Rules Fail at Combating Campus Sexual Assault


Previously on PolicyMic, I argued that by mandating that all universities receiving federal funding prosecute sexual harassment and sexual assault using the "preponderance of the evidence" evidentiary standard, the federal Department of Education's Office for Civil Rights (OCR) has put the rights of those accused of serious offenses at risk. 

But campus judicial systems have frequently failed student victims of sexual misconduct in the past — and often through the misinterpretation or abuse of federal regulations meant to protect student safety.

Complaints from victims' advocates in recent years have in part highlighted the failure of universities to properly employ federal policies — namely the Clery Act and the Family Educational Rights and Privacy Act (FERPA) — meant to protect victims of sexual assault on campus. Abuse of these policies, they say, has resulted in students' being subjected to obsessively secretive disciplinary procedures and has given a distorted picture of the true extent of crime on campus. They have a point.

The Clery Act requires universities to compile and disclose data on campus crimes (including sexual assault), and to provide students information on the determinations of cases in which they are involved. Groups like the Center for Public Integrity claim, however, that many universities do a shoddy job at the data collection, or stealthily get around reporting requirements. Universities can, for instance, nudge students toward counseling services on campus staffed by professional counselors — which do not (for confidentiality purposes) have to report such incidents under the Clery Act.

Or universities just lie. The most sensational example of this took place at Eastern Michigan University, which apparently did not disclose its knowledge of the rape and murder of a female student, saying instead that foul play was not suspected in the case. An investigation by the Department of Education further showed that EMU's Clery reports had repeatedly misclassified sexual offenses.

Universities' interpretations of FERPA — meant to protect students from having their educational records disclosed to the public — have at times been injurious to victims as well. At Temple University, a student was shocked to see back on campus the student whom she thought had been expelled for sexually assaulting her. Temple, citing FERPA, believed that it was prevented by the law from informing her that the student had appealed, and then failed to notify her that the expulsion had been overturned. The Department of Education corrected Temple, as it did the University of Virginia in 2008 in declaring that UVA could not require complainants to sign confidentiality agreements in order to be provided with information on their cases. The UVA case gives insight into the confusion caused where Clery and FERPA meet, with institutions believing they cannot provide the information required by the first act without violating the second.

OCR's April 4 letter, for all its other faults, reminds universities that this is not the case, and that is for the better.

But sometimes it is the accused student who is the victim, and the OCR letter will make those victims more numerous due to its mandated "preponderance of the evidence" standard (50.01% certainty, the lowest in our judicial system) in cases of alleged sexual harassment or assault. 

A couple of shocking recent cases illustrate the possibility — if not the probability — of unjust outcomes in cases where such a low standard is used. At the University of North Dakota, student Caleb Warner was found guilty of sexual assault and suspended for three years under this standard. Local police, however, not only declined to pursue charges against Warner, they charged his accuser (who left the state) with filing a false police report. UND determined, however, that this development did not constitute sufficient grounds to grant Warner a rehearing.

Then there is a recent case at Stanford University, where a male student was found guilty of sexual assault after Stanford lowered the standard of evidence used in his case, per the OCR letter, while the case was still in process. This student's case illustrates the potential for disaster when a perilously low standard of evidence is combined with fundamentally unjust procedures: FIRE's investigation of the case revealed that the "training" materials provided to jurors at Stanford in such cases are biased to the point of explicitly warning jurors not to trust accused males, since acting "logical" can be a sign of guilt.

Despite these cautionary examples, the big stick the government wields with its ability to yank federal funding is now leading our colleges to embrace disciplinary procedures far more likely to punish innocent students.

As a result, federal policy has found itself at both ends of the problem of effectively combating sexual assault on campus. You might say that this amounts to failures on both sides of the scales of justice. Far from balancing things out, however, it reinforces that old saying: Two wrongs don't make a right.

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