Colleges would not be allowed to punish a student for committing sexual assault unless the alleged victim agrees to report their attack to police, under a pair of new bills pushed by national fraternity organizations and opposed by higher education groups.
The North-American Interfraternity Conference and the National Panhellenic Conference, umbrella groups representing fraternities and sororities, are promoting legislation that calls for new protections for students accused of rape. The legislation, introduced last week in the House of Representatives, would also limit the cases that colleges can investigate.
The fraternity groups, including the Fraternity & Sorority Political Action Committee, say the bills would address concerns raised by several higher education groups. However, many of the higher ed trade groups cited by the NIC told The Huffington Post they do not support the legislation, and some said they do not believe fraternities understand the concerns of college and university administrators about sexual assault.
A pair of similar bills were presented on July 29 ― the Safe Campus Act, sponsored by Reps. Matt Salmon (R-Ariz.), Kay Granger (R-Texas) and Pete Sessions (R-Texas), and the Fair Campus Act, sponsored by Sessions and Rep. Susan Brooks (R-Ind.) ― just as the Senate conducted its first hearing on a bipartisan bill that would institute new regulations on how colleges handle sexual assault.
The Safe Campus Act, the more comprehensive of the two bills, stipulates that colleges may only investigate an allegation of a criminal sexual assault if the alleged victim agrees to report it to local law enforcement. If the alleged victim chooses not to do so, then the school would be forbidden to investigate or carry out any sort of punishment against the student accused of sexual assault, no matter what evidence is available. The school would only be able to offer counseling and academic or interim accommodations to the alleged victim.
From the Safe Campus Act:
If an individual provides a notification to the institution under this paragraph with respect to an allegation, the institution may not initiate or otherwise carry out any institutional disciplinary proceeding with respect to the allegation, including imposing interim measures described in subsection, but only if the individual includes in the notification a statement that the individual understands the effect under this subparagraph of providing the notification.
The Foundation for Individual Rights in Education, a higher education civil liberties group, said this restriction would be a good thing.
“Currently, when the police aren’t called, allegations of criminal misconduct are adjudicated by a patchwork campus system that has proven unable to fairly and competently adjudicate these accusations, frequently sacrificing the rights of the accuser, the accused, or both parties,” Joseph Cohn, FIRE’s legislative and policy director, said in a statement last week. “FIRE does recommend, however, that non-punitive interim measures and accommodations be made available regardless of the student’s decision to report.”
FratPAC described the Safe Campus Act as a bill that would “bring more perpetrators of sexual violence to justice.” NIC pointed to several instances in which members of the American Council on Education, a group representing college presidents, have voiced concerns about conflicts in sexual violence investigations. But ACE says it does not support the Safe Campus Act, noting that it had no role in the bill’s formulation.
“The suggestion that the bill addresses issues raised by ACE is simply speculation by those supporting the bill,” the group said in a statement to HuffPost. “However, colleges and universities would have grave reservations about any legislation that would limit our ability to ensure a safe campus.”
To be sure, colleges and universities have raised objections to the Senate legislation on campus sexual assault. And schools are generally quick to remind critics that they don’t have the same investigative power as the criminal justice system, and can’t be expected to go to the same lengths in dealing with certain allegations. But higher education trade groups have not called for an end to campus adjudications, and many said they object to the restriction that would be imposed by the Safe Campus Act:
- An official with the Association of American Universities, a group that represents elite research institutions, told HuffPost, “We don’t support the bill and do not consider it a response to concerns expressed by higher education.”
- NIC said the bill aligns with the Association for Student Conduct Administration’s call to hold off on sexual assault investigations while law enforcement is handling a case. But Laura Bennett, president of the ASCA, said the group absolutely does not support the Safe Campus Act or the Fair Campus Act. “Not only do they conflict with federal law such as Title IX,” said Bennett, “they interfere with student conduct procedures that colleges and universities have in place to treat every student fairly and respectfully.”
- “I’m not certain that [the bill’s authors] necessarily understand our concerns, let alone properly deal with them,” said Makese Motley, spokesman for the American Association of State Colleges and Universities. Motley noted that the authors of the Safe Campus Act didn’t discuss the legislation with the AASCU.
- The National Association of Independent Colleges and Universities declined to endorse the bill, saying the group had not been consulted on the legislation and that its focus is on “giving colleges the flexibility to adapt and evolve as advances in best practices occur.”
- “The legislation doesn’t actually respond to the complexity that colleges and universities have to navigate with reports and allegations of sexual assault and violence while affirming the rights of both the survivor and the accused,” said Andrew Morse, director for policy research and advocacy at NASPA - Student Affairs Administrators in Higher Education.
- “To be clear, we have never been in support of the idea of blocking colleges from investigating complaints of sexual assault when the victim chooses not to involve law enforcement,” said Jeff Lieberson, spokesman for the Association of Public and Land-grant Universities.
Both the Safe and the Fair Campus Acts include other provisions meant to increase the amount of due process afforded to students accused of sexual violence and fraternities accused of misconduct. While the U.S. Department of Education is investigating claims at 128 colleges ― largely from alleged victims of sexual assault ― that the schools mishandled their cases, a number of men accused of rape have also filed lawsuits against universities alleging mistreatment.
Under the proposed legislation, colleges would be able to use whatever standard of evidence they wish in campus adjudications. Currently, the Education Department tells schools they must rely on the “preponderance of evidence” standard. In other words, a school has to believe there is at least a 51 percent chance an accused student is responsible for a transgression before the school can issue whatever punishment it sees fit.
The Safe and Fair Campus Acts could allow schools to set a much higher standard in these proceedings, potentially making it more difficult to punish offenders. In addition, accused students would get access to “all material evidence... not later than one week prior to the start of any formal hearing or similar adjudicatory proceeding,” the bills state.
Colleges are obligated to respond to reports of sexual violence due to the gender equity law Title IX. The Safe Campus Act states that a school following its provisions would not be found in violation of Title IX.
The NIC and NPC declined to make anyone available for interview, but said through a spokesperson that they are seeking to limit campus rape investigations because “any crime of violence committed against a student should involve a law enforcement role to hold the perpetrators accountable.”
The NIC and NPC had previously floated the idea of blocking colleges from investigating sexual assault cases until after a police investigation and criminal trial. The proposal was met with backlash from U.S. senators, sexual assault advocacy groups and members of fraternities and sororities.
Read the text of the Safe Campus Act below:
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Tyler Kingkade covers higher education and sexual violence, and is based in New York. You can contact him at tyler.kingkade@huffingtonpost.com, or on Twitter @tylerkingkade.