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The Daily Signal
How Should
Sexual Assault Be Managed on Campus? Two Bills’ Different Approaches
Andrew Kloster
August 24, 2015
There is no doubt that American colleges should be safe for all
students.
A recent University of Virginia case is any example, however, of the
difficulty college communities often face dealing with those accused of
crimes, as well as those who are victims.
In the recent Virginia case, allegations of sexual assault were
repeated in a national magazine and led to widespread outrage, even
though the case turned out to be a hoax. Similarly, in 2006 a number of
Duke lacrosse players were falsely accused of rape—this also turned out
to be a hoax and led to the eventual resignation and debarment of the
district attorney.
These players were pilloried in the media and on campus, even while
protesting their innocence.
At Washington and Lee University, another case has landed in court,
where the expelled student alleges a host of due process violations on
the part of the university.
Yet even while false accusations do occur, criminal acts also occur on
college campuses. It is certainly the case that colleges should take
such allegations seriously.
This means all members of university communities should be on guard to
help keep each other safe.
In effort to combat this, lawmakers last month introduced two similar
pieces of legislation in the House, aimed at reforming the way colleges
and universities handle claims of sexual violence on their campuses.
The Safe Campus Act (H.R. 3403), introduced by Reps. Matt Salmon,
R-Ariz., Pete Sessions, R-Texas, and Kay Granger, R-Texas, and the Fair
Campus Act (H.R. 3408) introduced by Rep. Sessions were offered as
amendments to the Higher Education Act of 1965 and would apply to any
such institution receiving federal funding.
Both are similar in composition and attempt to leverage federal funding
to mandate various procedures be followed on college campuses whenever
an allegation of “sexual violence” is made.
This method of regulation is used because Congress does not have
general Constitutional authority to regulate the nation’s education
system: however, it can attach strings to federal money, and it often
does so.
Thus, one major theme of future legislation in this area will be how to
appropriately leverage the federal spending power while also respecting
local oversight of schools.
Both pending acts would allow the “standard of proof” to be set by the
individual institution.
Currently, colleges receiving federal funds are mandated by the
Department of Education to use the “preponderance of evidence” standard
in adjudicating allegations of sexual assault, which means a reviewing
board need only conclude that it is “more likely than not” that someone
was committed a sexual assault in order to “convict” and even expel an
accused student.
This low standard of proof has been in place ever since the Department
of Education issued a “Dear Colleague” letter back in 2011. However,
this centralized approach clashes with the federalism values in the
Constitution and has led for many to call for more local management of
sexual assault proceedings.
These two bills would explicitly allow each “institution” to set its
own standard, rather than following Department of Education mandates.
The two acts do differ in one important way.
Under the Safe Campus Act, institutions would be required to report
claims of sexual violence to a local law enforcement agency.
If the alleged victim does not agree to allow the school to report the
crime reported to a local law enforcement agency, the institution would
not be permitted to conduct its own investigation into the alleged
incident.
The Fair Campus Act does not include this provision. Currently, it is
an open question whether or not colleges are well-equipped to
adjudicate issues of sexual assault, or whether requiring mandatory
referral to law enforcement makes more sense.
When Congress returns in the fall, the issue of campus sexual assault
will undoubtedly be a part of the discussion, and it is certainly a
serious issue worthy of a measured response.
The Heritage Foundation will be hosting a discussion on this important
issue — “Due Process Goes to School: How to Handle Campus Sexual
Assault Cases” — as part of its “Preserve the Constitution” series
featuring three experts on the subject: Heather MacDonald of the
Manhattan Institute, KC Johnson of Brooklyn College, and Samantha
Harris of the Foundation for Individual Rights in Education. The event
will be on October 8 at noon, and is open to the public.
Read this and other articles at The Daily Signal
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