The Campus Accountability and Safety Act, being billed as a bipartisan response to rape on college campuses, is drawing doubts over the matter of “accountability and safety” — for whom.
At a press conference this week, Sen. Lindsey Graham of South Carolina, one of 12 Republican co-sponsors, said the bill is aimed at ensuring “students and parents [have] a safe place to go to school where they will be fairly dealt with.” Another Republican, Sen. Joni Ernst of Iowa, said the bill is “about doing what is right for young men and women out there on campuses all across the United States.”
But the “young men” who say they have been falsely accused of sexual assault on college campuses may be wondering how CASA ensures that they are “fairly dealt with.”
The 51-page bill, spearheaded by Democratic Sens. Claire McCaskill of Missouri and Kirsten Gillibrand of New York, mentions the phrase “due process” three times — each time referring to institutional policies or laws already in place. On the other hand, the word “victim” appears 59 times.
Most of the provisions are aimed at providing additional resources for those who say they have been sexually assaulted on campus, such as requiring educational institutions to create “confidential advisers” for “victims” to talk to before coming forward with accusations.
Chloe Rockow, press secretary for Sen. Kelly Ayotte of New Hampshire, another Republican co-sponsor, said providing additional resources for accusers will increase the due process protections for the accused by “steer[ing] more cases” to law enforcement.
But the bill does not require colleges to refer reports of sexual assault to law enforcement, and it includes few provisions directly addressing due process protections for the accused. Under CASA, for instance, colleges would be required to notify both the accuser and the accused within 24 hours of decisions to proceed with disciplinary procedures, and again when a determination of a responsibility has been reached.
Although a representative from the office of Sen. Charles Grassley, Iowa Republican, said the lawmaker was instrumental in adding the notification window, the senator at the press conference said the bill “didn’t focus on campus discipline process, because that isn’t the answer.”
But if expanding due process protections for the accused “isn’t the answer,” Cynthia P. Garrett, advocacy chair and member of the board for Families Advocating for Campus Equality, said Republican senators should be asking different questions.
Ms. Garrett said CASA “strengthens” directives from the Department of Education’s Office of Civil Rights, which in 2011 required colleges and universities to, among other things, adjudicate accusations of sexual assault on a “preponderance of evidence” standard.
The bill gives the OCR new confiscation powers to hold universities in compliance with such mandates, allowing the agency to fine colleges and universities up to 1 percent of their annual budget for each violation.
As Joseph Cohn, legislative and policy director at the Foundation for Individual Rights in Education, pointed out, some universities have been reprimanded for issues “as small as, ‘It took three clicks on the website before we found this webpage.’”
Although the proposed legislation does not specifically codify many of the most problematic OCR mandates, Ms. Garrett said by giving the agency new cudgels with which to pummel universities, CASA is a “tacit endorsement” of the OCR’s “illegal directives.”
She said provisions like those in CASA are a “laudable attempt to increase protections for alleged victims of sexual misconduct,” but neglect the emotional trauma suffered by men falsely accused with paltry means to defend themselves.
“We have had many accused men in extensive therapy or hospitalized for suicidal behavior, and know of at least two suicides in the U.S.,” Ms. Garrett said.
Mr. Cohn did not fault Republicans for wanting to have a “seat at the table” in crafting CASA. He said the bill’s failure to codify OCR mandates may very well have been due to Republican intervention. But Mr. Cohn said FIRE ultimately “cannot support CASA until the problems in this current draft are fixed and meaningful due process provisions are added.”
“The bill does so little to advance the cause of fundamental fairness that it’s really difficult to see how anyone could characterize this bill as advancing due process,” he said. “It restates the current inadequate rule that students can bring the adviser of their choice with them. What the bill really needs to include is the right to have active assistance of counsel as a bare minimum of what it takes for legislation to be really fair to both parties.”
He said he is “hopeful” that Republicans sponsoring the bill will work to make changes during the legislative process, such as striking language that “assumes complainants are victims” before the legal process has played out and “removing the provisions that dramatically increase OCR’s ability to give fines.”
Alice True, director of Save Our Sons, said any legislation aimed at creating a fair process for adjudicating campus sexual assaults must recognize the university’s inherent structural limitations in conducting trials and investigations.
“Adjudicating a federal crime should not be occurring on college campuses, where rules of evidence, an oath to be truthful, subpoena power, the right to take the 5th, and the presumption of innocence does not exist,” Ms. True said.
She chalked up Republican involvement in CASA to “politics pure and simple,” adding that some lawmakers may consider it “political suicide” not to support the legislation.
A representative from the office of Sen. Dan Sullivan, Alaska Republican and a cosponsor, said he expects the bill to be modified as it makes its way through the Senate.
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