Thursday, the federal government sent a message that it’s taking sexual harassment on college campuses seriously. Education officials released the names of 55 schools facing investigation for their handling of sexual abuse allegations. This comes after the White House issued new guidelines for colleges on Tuesday.
Colleges find themselves increasingly pressed to act as pseudo-courts. Schools have been under fire for discounting complaints, mismanaging cases and meting out punishments that look more like slaps on the wrist. By all accounts, there’s plenty of room for improvement.
Still, college discipline procedures can make certain allowances that courts cannot, and school panels can step in when an alleged victim is wary of going to court.
Too Much For Colleges To Take On?
Some say it should come as no surprise that college panels — set up to rule on things like whether Johnny plagiarized his history paper — are now bungling cases of serious and sensitive crimes that even courts have trouble with. Colleges are simply in over their heads, says David Lisak, a consultant on campus sexual assault.
“There is a level of absurdity in making universities handle serious sexual violence cases,” Lisak says. “We wouldn’t ask universities, of course, to handle a homicide. We don’t even ask them to handle serious aggravated assaults.”
Indeed, colleges have a fundamentally different mission than the criminal justice system.
“A victim comes in looking for justice. A school looks at the process as an opportunity to educate the assailant about the behavior that was not acceptable,” says Colby Bruno, a former prosecutor who now represents victims in campus proceedings.
Bruno says the new federal guidelines will push schools further from that old-school approach of viewing incidents as just a teachable moment, rather than a day in court.
“Schools in the past have been reticent to bring down harsh punishment because, truthfully — and I’ve heard this time and time again — they didn’t want to ruin the accused’s life,” Bruno says.
Even if adjustments to the process are needed, some worry that the federal government is pushing schools too far.
“Yes, colleges and universities should provide comfort and aid and sensitivity. But if we want to address this problem, let’s call it what it is: It’s a crime. And let’s turn it over to police and to courts,” says Anne Neal, president of the American Council of Trustees and Alumni, a nonprofit that focuses on academic freedom and accountability.
“By creating a shadow system of campus justice, I think what we’re going to do is end up trampling on constitutional rights,” Neal says, “and will likely harm more than it will help.”
How School Panels Differ From Courts
In many ways, colleges have less power than law enforcement. They can’t subpoena evidence or witnesses, for example.
In other ways, colleges have a lot more leeway. For example, while prosecutors routinely drop criminal cases that would be hard to prove “beyond a reasonable doubt,” campuses have a lower bar. They need only a “preponderance of the evidence,” which means that an offense was more likely than not to have occurred.
Also, in the courts, the onus is on the accuser to prove a crime, but campuses can put the burden on the accused to prove they actually had sexual consent.
“The colleges’ disciplinary process can actually capture a lot more conduct that is inappropriate that [in] the criminal justice system would never, ever result in criminal convictions,” says Djuna Perkins, a former prosecutor who’s now a consultant to colleges.
As Perkins sees it, adjudicating rape cases — and ensuring a safe learning environment — is absolutely within the purview of colleges.
A Complement, Not A Substitute
Addressing sexual assault cases is both a moral and a legal necessity for schools, just as it is for employers or the military, says Amherst College President Carolyn Martin.
“There is probably no institution in the country that ought not to see it as fitting that they protect people from violence of any kind,” says Martin, whose school has come under fire for its handling of sexual violence cases.
Colleges and universities often end up as the sole adjudicators of sexual assault cases because many alleged victims can’t or won’t go through a criminal justice system that they believe will only re-traumatize them.
Martin says campuses are a complement to the courts, not a substitute; the two have separate and distinct roles.
Even if courts were doing a perfect job, she says, that wouldn’t let colleges off the hook. Amherst recently launched a new model for handling complaints. Rather than try to train English professors and college students to be judge and jury, Amherst outsources the job to a panel of experts.
Many other schools might be reluctant to give up their autonomy in that way, but the pressure to get it right is growing, and it’s not only coming from the government.
Colleges used to fear getting sued for expelling a student for sexual assault. Now, they also worry about getting sued if they don’t.