Ayotte joins bid for federal campus assault bill

Printed from: http://newbostonpost.com/2016/04/26/ayotte-joins-bid-for-federal-campus-assault-bill/

WASHINGTON A bipartisan group of federal lawmakers began a push Tuesday to pass a bill that seeks to create uniform procedures for the adjudication by college bureaucrats of campus sexual assault charges.

Flanked by a group of fellow lawmakers along with several victim advocates, U.S. Sen. Kelly Ayotte (R-New Hampshire) said the proposal “focuses on making sure these crimes are properly investigated.”

The proposal “transcends all party lines,” Ayotte said, and seeks to establish consistency when it comes to campus investigations.

“You see behind you a strong bipartisan consensus,” Ayotte added. “Let’s get it passed.”

Despite its bipartisan support, the Campus Accountability and Safety Act, which was introduced in the Senate in July 2014, has yet to be given a hearing. Sen. Kirsten Gillibrand (D-New York) said the measure was reintroduced in February after lawmakers reviewed concerns about the rights of accused students under the proposed law.

The bill would require colleges and universities to implement a standardized, online, and biannual survey of students regarding their experiences with sexual violence and harassment, the results of which will be published on the Department of Education’s website biannually.  Failure to complete the survey to the Department of Education’s satisfaction could result in monthly fines.

The use of such surveys is not without controversy. Last fall, Harvard University announced results of a survey, conducted the Association of American Universities (AAU) on behalf of 28 schools, that claimed some 31 percent of Harvard college women were victims of sex assault or sexual misconduct at some point during their time on the Cambridge campus.

Critics quickly pointed out that the survey’s language was deliberately vague and defined any sexual touching without affirmative consent (behavior that would include a stolen kiss or unwanted caress) as assault. The AAU, which conducted the surveys, has defended this approach, noting that  “[w]ords such as ‘rape’ and ‘assault’ were specifically avoided so that respondents would use a set of uniform definitions when reporting on the types of events that were of interest.”

Concerns about the surveys weren’t mentioned in Tuesday’s briefing, which focused on other aspects of the legislation, such as the requirement that colleges and universities form cooperative agreements with local police in handling investigations.

The measure would also require schools to use a single uniform process during disciplinary proceedings, designate a school official to serve as a confidential adviser for victims of sexual assault to provide information about support services and options for reporting the incident, and require schools to provide training for all persons involved with claims of sex assault and student discipline.

The legislation would allow the Department of Education to impose stiff penalties: up to 1 percent of the offender’s operating budget, in the most severe cases. Currently, schools that don’t comply with the law barring discrimination in education based on sex, known as Title IX, face the threat that the Department will cut off federal aid, but the Department has yet to actually cut a school’s aid on this basis.

The current bill is being pushed as colleges and universities struggle with new federal policies governing sexual harassment put in place under President Barack Obama’s administration. In 2011, the Education Department’s civil rights office began sending official advisories that essentially ordered schools to update sexual-assault policies or risk losing federal funding.

The missives noted that schools should replace “clear and convincing evidence” evidentiary standards with the “preponderance of the evidence” standard, effectively loosening the evidentiary requirements for determination of guilt.

But in October 2014, 28 members of the Harvard Law School faculty signed on to an op-ed published by the Boston Globe denouncing the use of procedures that lack due process protections for the accused and condemning the university’s decision to adopt a blanket policy that incorporates the looser “preponderance of evidence” standard.

A recent flurry of federal lawsuits shows that both the accusers and the accused in such cases often object to their college’s handling of the matter and its disciplinary procedures.  In February, a 2015 Harvard University graduate who says she was a victim of sexual assault while in college sued the school, alleging that administrators failed to apply the new, looser evidentiary standards in addressing her claims.

On the flip side, Yale University’s former men’s basketball team captain is preparing to sue the Ivy League institution, claiming that he was denied due process and wrongly expelled by a secret vote of an anonymous disciplinary council.  And earlier this month, U.S. District Court Judge F. Dennis Saylor IV rejected Brandeis’s request to throw out a lawsuit against the Waltham college by a student accused of sexual assault by a former boyfriend.  In allowing the suit to proceed, Saylor said Brandeis used “a secret and inquisitorial process” in which the accused was not allowed to know the details of the charges or to see evidence, retain counsel or confront his accuser.

In Tuesday’s briefing, Gillibrand said that concerns about the due process rights of accused students would be addressed by the legislation because it ensures that equal or equivalent, unbiased services are offered to sexual-assault victims and to those they accuse of wrongdoing.

“If one side has counsel then the other side can have it too,” Gillibrand said.

Referring to many of the current campus disciplinary tribunals as “kangaroo courts,” Gillibrand said the bill’s uniform approach would eliminate the current “hit or miss” results that vary from school to school.

Sen. Claire McCaskill (D-Missouri) supported the notion that the bill will protect the rights of the accused.

“We want due process, we want transparency,” McCaskill said. “It’s fair to survivors and certainly fair to the accused.”

But experts say the proposal does not address the accused’s access to evidence to be presented at any discplinary hearing, nor does it specifically address whether schools should comply with the Obama Administration’s directive to apply the looser “preponderance of the evidence” standard in determining whether assault, which is a crime, has occurred.

Others who spoke, including Sen. Lindsey Graham (R-South Carolina), said the overall goal of the legislation is to give colleges and universities incentives to deal with the issue.

“When schools in marketing themselves to parents and students say ‘here’s what we’ll do to protect you’  – when that day comes, we’ll know we have won,” Graham added.

Gillibrand said the hope is that the proposal is wrapped into a higher education bill that’s on track for passage in the Senate later this year.

“We hope we’re included in the higher education bill, but if not, we’re hoping for a simple up or down vote,” she said.

Sen. Shelley Moore Capito (R-West Virginia) said challenges could arise if the bill is assigned to a committee. The current legislative session will conclude when the 114th Congress ends either late this year or early next year, and if the proposal hasn’t passed by then it would need to be refiled.

“We do a lot of things here in which things magically appear on the floor without going through committee,” Capito noted. “I don’t know why this can’t happen for this bill.

“We can try in September, if we can’t get it through by August,” she said.