College and University Lawyers Struggle with Federal Guidance on Sexual Assault

As the discussion continues over how colleges and universities should respond to allegations of sexual assault on campus, new voices are chiming in to contend that the government is placing a significant burden on institutions and their administrators without providing the necessary resources.

Eric Kelderman laid out some concerns articulated by university lawyers in an article for The Chronicle of Higher Education yesterday, after speaking with attendees at an annual meeting of the National Association of College and University Attorneys (NACUA). Many of these concerns will be familiar to Torch readers. (And as my colleague Robert Shibley reported after last year’s NACUA meeting, attorneys in attendance weren’t so happy with federal mandates twelve months ago, either.)

Recently released recommended policies and practices from the White House Task Force to Protect Students from Sexual Assault include staff and student training on dealing with sexual assault, student surveys, and periodic reporting of pertinent information. Some universities will have to complete extensive revisions of their policies in order to comply with the Task Force’s recommendations. Additionally, as Kelderman points out, in many cases institutions are required to do more than what law enforcement is required to do, without the resources available to law enforcement:

Law-enforcement agencies have dedicated investigators, subpoena power, and the ability to collect and analyze forensic evidence, [Pepper Hamilton attorney Leslie] Gomez said. In addition, law-enforcement agencies can decline to prosecute a case without any legal repercussions.

"Colleges and universities lack the same tool kit, legal protections, or ability to decline a review," Ms. Gomez said. "On college campuses, Title IX requires the institution to take immediate and appropriate action in every case to eliminate a hostile environment, prevent its recurrence, and address its effects, even if the victim requests that the college not take action," she said.

Universities are struggling to navigate the many requirements and suggestions from the federal government, and as Kelderman explains, they “feel compelled to hire staff members with legal expertise to investigate complaints and provide support services for students who file complaints.” Further, “managing complaints of sexual violence requires several people, because the person doing the investigation has to be different from the person providing the support and advocacy services to the alleged victim.” All of this, of course, costs money.

Several panelists at Monday’s roundtable discussion on campus sexual assault led by Senator Claire McCaskill noted this problem. Although there are some federal grants available to institutions to help implement training and other programs to prevent and respond to sexual assault, these grants are not enough to aid all colleges with the extensive requirements they must now comply with.

Whether the recent guidance from the government is the correct answer or not, one thing is clear: Changes in how institutions handle sexual assault cases must be made. In response to the White House Task Force’s first report, FIRE President Greg Lukianoff said:

No one is happy with the way campuses currently deal with sexual harassment, sexual violence, and rape—not victims, not the accused, not parents or loved ones, not administrators, not university counsel, not defense attorneys, not civil liberties advocates, and not the general public.

Recent statistics from United Educators, an insurance company serving educational institutions, further illustrate this problem, as I reported earlier this week. In a five-year study, tens of millions of dollars were paid out to both students accused of sexual assault and alleged victims who claimed their institutions mishandled their sexual assault cases. But this study ended in 2010, before the recent barrage of guidance and mandates from the Department of Education’s Office for Civil Rights and the White House. The pressures on colleges and universities have only increased since United Educators’ study.

As FIRE has said before, colleges and universities are stuck between a rock and a hard place. Any working solution must include greater involvement of law enforcement in cases of sexual violence, both in order to relieve institutions of an impracticable burden and because the criminal justice system is better equipped to determine the truth and implement appropriate punishments that will protect the community from future crimes.

Today in a hearing of the U.S. Senate Committee on Health, Education, Labor, & Pensions, Catherine Lhamon, Assistant Secretary for Civil Rights at the Department of Education, said that recommendations for the appropriate relationship between law enforcement and institutions of higher education are expected to be released in the coming weeks. FIRE looks forward to seeing those recommendations, and we will continue to provide updates here on The Torch.

Read the rest of Kelderman’s article in The Chronicle of Higher Education.