A Balanced Approach to VAWA
July 24, 2012
by Joseph Cohn
Yesterday morning Inside Higher Ed joined The Chronicle of Higher Education in reporting that some domestic violence advocates and survivors of sexual assaults on university campuses have again asked Congress to iron out the differences between the two chambers' versions of the Violence Against Women Reauthorization Act ("VAWA"). These advocates are encouraging Congress to pass a comprehensive bill before the session closes that includes protections for victims of sexual assaults in the college setting.
This latest push by advocates presents a good opportunity for FIRE to reiterate our hope that any final version of VAWA will take the rights of all students into account. FIRE takes no position on the vast majority of VAWA's provisions, as much of each chamber's bill addresses issues beyond our mission of protecting student and faculty rights on campus. However, FIRE has been concerned about those elements of the bill that would affect campus rights.
We've been outspoken in our support for aspects of each chamber's bill that would positively impact student due process protections. Still, we have repeatedly cautioned that the final legislation must not include measures that diminish due process rights for the accused or infringe on other constitutional rights. Unless we are to believe that all students accused of sexual misconduct are necessarily guilty—a premise completely undermined by the Duke Lacrosse scandal and the Caleb Warner case—balancing the rights of student victims of sexual misconduct and the rights of students accused of such misconduct requires acknowledging the legitimate interests of both the accuser and the accused and creating a framework that fairly accounts for all of those interests.
FIRE believes, and I have written before, that when it comes to striking this balance, both versions of VAWA still need some work. For example, while the Senate version (S. 1925) includes important language requiring all campus sexual assault hearings to be conducted in a manner that is "prompt, fair, and impartial," it also includes a provision requiring that at colleges or universities that allow appeals from outcomes of sexual assault proceedings, both the accused and the accuser must be granted the right to appeal a disciplinary finding and any sanction. Forcing an exonerated student to face discipline or expulsion a second time after he or she has already been cleared constitutes a threat to fundamental fairness akin to that prohibited in criminal hearings by the Fifth Amendment's bar against "double jeopardy." FIRE opposes this provision in S. 1925 because we believe that, for the same reasons of fundamental fairness that our criminal justice system does not allow double jeopardy, neither Congress nor colleges and universities should force students to face new hearings after being found not guilty.
Meanwhile, the version of VAWA that passed the House of Representatives (H.R. 4970) cut the unfair double jeopardy provision but included a last-minute amendment to create a "National Center for Campus Public Safety." The Center's mission would focus on the issuance of "policies, procedures, and best practices relevant to campus public safety," including "effective behavioral threat assessment and management models," among other aims. All of that sounds good, right? Well, not when you consider the state of the higher education threat assessment industry and the models that some prominent risk management outfits promote. As I explained in greater detail on The Torch in May, in FIRE's experience threat assessment programs have too often sought to expand and abuse their power by monitoring, censoring, and punishing the peaceful speech of students and faculty members. As FIRE's Will Creeley tells Inside Higher Ed in yesterday's article:
"We've seen these threat assessment teams invoked to punish protected speech, and while I think there's obviously warranted attention to students who may be experiencing mental health issues or may actually present a threat," said Will Creeley, [Director of Legal and Public Advocacy] at FIRE, the current model "often errs on the side of throwing everybody into the hearing process and then sorting it out later with very mixed results."
Moreover, if advocates believe such a center should be created, that idea should be presented to the relevant congressional education committees for consideration and debate, not snuck into a domestic violence bill without the benefit of stakeholder input at the eleventh hour. Bypassing standard procedure undermines the democratic process and may lead to unintended consequences.
Again, FIRE takes no position on a vast majority of the provisions in either version of VAWA, and, like the advocates quoted in the Chronicle and IHE, we believe that campuses should be safe learning environments for all students. But FIRE will not support any language that fails to recognize that justice requires individual determinations of guilt or innocence resulting from fair and reliable procedures and finality for those exonerated. Nor will FIRE support language that might result in official endorsement of threat assessment models that we have repeatedly seen used to crack down on protected speech. Instead, Congress should recognize the necessity of striking the balance that all college students deserve.