Politics & Policy

Overreaching on Campus Rape

DOE rules kill due process, sow confusion and red tape — and do nothing to reduce sexual violence.

Jezebel’s Erin Gloria Ryan recently declared, “Being terrible about rape appears as endemic to American high education as barfing on the quad.” Ryan had just heard the news that 55 American universities are facing federal Title IX investigations for possibly mishandling cases of sexual misconduct. Jezebel seems to think that the Department of Education (DOE) investigations are evidence of a sexual-assault epidemic and insidious “rape culture” plaguing our college campuses.

Actually, the investigations show no such thing. The DOE has made it clear that a college’s investigation “in no way indicates at this stage that the college or university is violating or has violated the law.” What the investigations actually reveal is just the beginning of the messy results of three years of federal overreach into campus rape policies.

Through a series of heavy-handed executive actions, the Obama administration has effectively required universities to serve as investigators and jurors for felony offenses. By doing so, they have placed universities in an impossible position, created costly bureaucracy, trampled students’ due-process rights, and empowered a cadre of hypersensitive, trigger-happy gender warriors on campuses. 

Campus conduct boards are best suited for handling academic infractions such as cheating or plagiarism. But in 2011, the DOE’s assistant secretary for civil rights, Russlyn Ali, issued a directive warning colleges that failure to aggressively pursue sexual-assault offenders would be considered a Title IX violation punishable by loss of federal funds. As a result of this intervention by the DOE’s office of civil rights (OCR), there are conduct boards composed of English professors, librarians, and math majors across the country determining guilt for what is generally considered the second most serious crime known to man.

To comply with the new rules of Title IX, universities have been frantically revising their policies. To be sure, many have added valuable resources and programs for victims of sexual assault. But for the most part, universities have responded to new federal guidelines exactly as you would expect — by hiring more bureaucrats to focus exclusively on Title IX compliance. The University of North Carolina has already hired five full-time Title IX coordinators since several students filed complaints, and they intend to hire more. UNC — a university with nearly 30,000 total students — had 21 reported forcible-sex offenses in 2012, according to its latest campus-security report. That comes to only about four cases of sexual misconduct per Title IX officer. (Meanwhile, UNC student activists have taken to protesting Robin Thicke’s “Blurred Lines” at bars and getting DJs fired for perpetuating “rape culture.”) Application of Title IX is complex, but it’s hard to imagine how hiring more college administrators will help solve the problem of campus rape.   

Despite the many resources expended in efforts to comply with Title IX, campus courts have unsurprisingly done a bad job adjudicating rape — not because they’re part of a conspiracy to silence victims or because they don’t take rape seriously, but because they’re charged with an impossible task.

The result has been a surge of lawsuits from students who allege that their universities mishandled their sexual-assault cases and failed to protect them from gender discrimination. Many schools are being investigated by OCR because of such formal complaints, while others are subject to “proactive” compliance reviews. After a messy Title IX feud erupted last month between OCR and Tufts University, Terry W. Hartle, senior vice president for government and public affairs at the American Council on Education, told Inside Higher Ed, “Many universities that have found themselves in a conflict with the OCR believe that this agency does not act in good faith and that it’s little more than a bully with enforcement powers.”

But university administrators aren’t the only ones troubled by OCR’s overreach. The DOE instructs colleges to use the lowest possible standard in our legal system — a “preponderance of evidence” — when adjudicating sexual misconduct. Because of the inadequacy of campus courts and lack of procedural safeguards in place to protect students, this has grave consequences for due process. After the White House released its latest report on sexual assault, Greg Lukianoff, president of the civil-liberties group FIRE, responded:

Sexual assault is one of the worst crimes a person can commit. . . .  But precisely because sexual assault is such a serious crime, providing those accused of it with due process — a term that appears nowhere in the entire report — becomes even more important. Due process is more than a system for protecting the rights of the accused; it’s a set of procedures intended to ensure that findings of guilt or innocence are accurate, fair, and reliable.

University courts have increasingly become infected with a “presumed guilty” mindset, resulting in serious miscarriages of justice for students falsely accused of sexual assault. Now, universities also have to deal with “reverse Title IX” lawsuits from falsely accused men who say their rights were violated when they were found guilty of sexual misconduct on campus. Men have already filed lawsuits against universities such as Swarthmore, Philadelphia University, Vassar, University of Michigan, and Denison, among others.

Even Brett Sokolow, director of the Association of Title IX Administrators and prominent victim advocate, has expressed concern that universities are violating men’s Title IX rights. In a recent newsletter, Sokolow writes: “In the last two weeks, I’ve worked on five cases all involving drunken hookups. In each case, the male accused of sexual misconduct was found responsible. In each case, I thought the college got it completely wrong.” Under unclear definitions of consent, Sokolow warns, the accused may “suffer an arbitrary and capricious application” of sexual-assault policies that amounts to gender discrimination.

Who benefits from the Obama administration’s overstep into campus rape? There’s no evidence that it has decreased rates of sexual violence or brought justice to more victims. But it has certainly empowered campus gender activists.

Too often, the people informing new campus rape policies are not sound voices of reason and justice, but overzealous activists who allege that all drunken sex constitutes rape and that we must steadfastly “believe survivors” despite any evidence to the contrary. The campus rape debate has given them a platform, and their extreme views have become enshrined in many universities’ policies. As a result, campuses such as Stanford, Yale, and the University of Montana employ broad and murky definitions of consent that no court would recognize. Activists are also seeing some success in demanding censorship of course materials, statues, and even music that could potentially “trigger” memories of sexual assault for victims.

How has the White House responded to the madness surrounding sexual assault on campus? Not by insisting that we adjudicate sexual assault in courts of law and hold rapists criminally responsible. Instead of such a commonsense solution, the White House is instead issuing more federal guidelines for campus rape response. As FIRE Senior Vice President Robert Shibley wrote in a recent op-ed:

The government’s latest effort to “clarify” the issue consisted of the task force’s 23-page report, a new website at NotAlone.gov, a 37-page template for “campus climate surveys,” a sexual misconduct policy checklist, a sample confidentiality policy, and, to top it off, a 53-page guidance document from OCR that is supposed to help explain how to apply the 47-page “blueprint” for sexual misconduct procedures promulgated last year as well as the 19-page “Dear Colleague” letter about the subject from 2011. And more documents are promised soon.

President Obama and the DOE seem to think that we can solve the problem of campus rape by expending more federal resources and issuing more unclear guidelines. This is madness. The bottom line is that even the most tightly regulated and well-funded campus tribunal will never be able to adequately adjudicate rape. Sexual-assault cases are very tricky to handle, even for trained law enforcement. And even if a campus court manages to deliver a just verdict without trampling the rights of either party, the harshest punishment at their disposal is expulsion. Rapists will never spend a day in jail, and they will be free to offend again.  

This strategy will not bring justice to rape victims. It will only result in more bureaucracy, less protections for the falsely accused, grave miscarriages of justice for all parties, and — you can be sure — more lawsuits and Title IX investigations. If President Obama really wants to take rape seriously, he will take the power away from campus kangaroo courts and place such criminal investigations where they belong: in the hands of trained law enforcement.

— Caroline Kitchens is a researcher at the American Enterprise Institute. 


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