Concern Grows over White House Task Force’s Recommendations

In the week since the White House Task Force to Protect Students from Sexual Assault released its first report (PDF), commentators nationwide have echoed FIRE’s concerns about the Task Force’s recommendations.

In a statement issued last Tuesday, FIRE President Greg Lukianoff argued that “[b]y continuing to empower campus judiciaries to adjudicate allegations of serious criminal activity, the Task Force’s recommendations may ultimately worsen the situation for both victims and the accused.”

That sentiment is seconded today in a powerful Wall Street Journal op-ed penned by attorneys Matt Kaiser and Justin Dillon.

Kaiser and Dillon (a member of FIRE’s Legal Network) argue that it is “absolutely appropriate to encourage colleges and universities to create programs that seek to deter sexual assault and to make sure that, when it happens, the victims are treated with respect.” But as they point out, achieving this goal shouldn’t require eroding due process rights or empowering unqualified, conflicted administrators to determine guilt or innocence:

In one recent case we handled at a large private university in the Midwest, the committee members were a religion professor, a librarian and a junior studying dance. Laudable pursuits all, but pursuits that no more qualify them to handle a rape case than a carburetor repair.

The task force's recommendations would double down on this system. It praises the so-called single-investigator model in which a solitary "trained" investigator would handle the entire investigative and adjudicative process. In other words, one person—presumably paid by the university, whose federal funding may be at stake if the government says the institution has contravened Title IX—will effectively decide innocence or guilt. There is a name for a system like this, and it is Javert.

Author, attorney, and FIRE Board of Advisors member Wendy Kaminer makes an equally strong argument along these lines in a piece for Cognoscenti, a blog maintained by Boston National Public Radio affiliate WBUR. Kaminer notes that the Task Force’s almost exclusive emphasis on campus proceedings fails to recognize the seriousness of sexual assault:

Does this approach exaggerate or trivialize the problem at hand? Sexual assault is a serious felony, the task force and victim advocates would agree. According to the Administration, one in five students are victimized by it. Assume that estimate is accurate and imagine that 20 percent of the people in a community are suffering violent assaults. Residents would likely demand a stronger police presence and stepped up criminal prosecutions, rather than informal neighborhood councils to “adjudicate” complaints. But on campus, felony complaints are to be prosecuted informally, the way schools might prosecute violations of a dress code, without affording accused students any meaningful rights.

Kaminer’s concerns are shared by columnist Megan McArdle, who wrote about the Task Force’s guidelines for Bloomberg View. Quoting a recent op-ed by FIRE Senior Vice President Robert Shibley, McArdle argues that adjudicating campus sexual assault allegations is a job for courts, not campus administrators:

If college students are children, then the college should have much wider latitude to control and punish their behavior, including taking steps to prevent these assaults, such as requiring students to live in single-sex dorms where no one else is allowed to be and imposing strict consequences for being caught drinking.

This doesn’t strike me as desirable (though perhaps it would, if I had a 19-year-old kid). However effective it might be at preventing assaults, treating women and men like children is not something I want to do. But if students are adults, and the college is not supposed to be in charge of their sex lives, then the correct place to adjudicate sexual crimes is in the courts, not the campus judiciary system.

McArdle is not the only commentator who believes that sexual assault requires a response from law enforcement, not campus administrators. Writing for Reason magazine, Cathy Reisenwitz makes the case that college administrators simply aren’t cut out for the serious job they’ve been assigned:

It's undeniably true that police botch rape cases horribly. They harass, intimidate, blame, and abuse victims, refuse to collect evidence or investigate, and allow rape kits to expire, untested by the thousands every year. But you know who does an even worse job than the professionals who are trained (however poorly) to deal with the crime? College administrators.

Yet for some reason, lawmakers decided that that's exactly who should be responsible for investigating and punishing rapes on college campuses.

Instead of trying to somehow recast college administrators as judicial officers via regulation, Reisenwitz argues persuasively that we should instead work to improve law enforcement’s response to sexual assault allegations:

The answer to ill-equipped, uninterested, abusive police departments isn't to move the cases to ill-equipped, unmotivated, perversely incentivized school administrators. It's to force cops to do their jobs. That's exactly what prosecutor Kym Worthy is doing in Wayne County, Mich., where Detroit is located. She's successfully pressured police to go through the county's massive backlog of rape kits, and is demanding change in the way rapes are handled after she discovered audio evidence of neglect and abuse of victims by cops.

If she can do it in one of the most cash-strapped areas of the country, it can be done everywhere. It takes pressure to force police departments to stop abusing victims and refusing them justice. But victims of all ages deserve nothing less.

Be sure to check out these columns in full, and keep checking back to The Torch for more reaction to the White House Task Force’s report.