DOJ’s Misguided Expectations of Campus Administrators

Since the release of the U.S. Department of Justice’s (DOJ’s) April 22 findings letter to the University of New Mexico (UNM), my colleagues have been analyzing many of its problematic aspects. From the overbroad definition of sexual harassment that threatens First Amendment rights on campus to the micromanaging of Title IX compliance, one thing is clear: The federal government is simply asking too much of campus administrators.

Although we’ve been focusing largely on the First Amendment implications, the UNM findings letter presents other serious problems as well. One such problem is that colleges and universities are increasingly under pressure to act not only as the speech police, but also, to some degree, as the actual police.

This pressure is evident in the criticisms that the DOJ levels against UNM’s investigatory procedures, techniques, and skills. Among those criticisms are:

• Lack of “understanding of trauma-informed interviewing and investigative techniques”;
• Lack of “effective training on how to collect and analyze evidence, including witness statements, using [the five factors that the Equal Employment Opportunity Commission relies on to determine credibility], resulting in inconsistent and unreliable determinations of credibility”;
• Inability of investigators to independently identify witnesses and gather relevant evidence; and
• Failure to investigate and adjudicate Title IX complaints within 60 days as a matter of general practice.

As FIRE has repeatedly pointed out, campus administrators lack the skills of detectives and investigators because they are not detectives and investigators—and it is wholly unreasonable to expect them to be. Administrators, even if trained in investigatory technique, lack any kind of subpoena power and other evidence-gathering powers that would be required to conduct a truly thorough investigation—powers the criminal justice system does possess. The lack of adequate investigatory tools and competencies, combined with an expectation that the process be completed within 60 days, will invariably lead to errors affecting complainants and violations of accused students’ due process rights.

FIRE is not alone in raising these concerns. A broad range of organizations and individuals—including the Rape, Abuse and Incest National Network (RAINN); University of California system President Janet Napolitano; Senator Bernie Sanders; and numerous scholars and journalists—have all argued that sexual assault is a criminal matter, and the criminal justice system is best equipped to investigate and adjudicate it.

High-profile cases, such as Baylor University’s clearing of a student who was later convicted in a criminal trial using a higher “beyond a reasonable doubt” evidentiary standard, only reinforce the point that colleges are either unfit to investigate these matters or have conflicting motives that may cause malfeasance in these investigations. Ironically, DOJ’s letter to UNM criticizes the university for having the office that conducts Title IX investigations report to the university’s attorneys, as the desire to mitigate legal liability could create a conflict of interests. In finding a potential conflict of interest inherent in UNM’s administrative structure but failing to recognize the broader conflict between institutional interests (such as public relations) and Title IX investigations that all colleges and universities have, DOJ has missed the forest for the trees.

In any event, when you combine unreasonable demands that go far beyond the capabilities of colleges and universities, unconstitutionally broad definitions of prohibited conduct, a lack of regard for the rights of the accused, and the pressure to achieve results backed by the power to strip federal funding, you have a recipe for disaster in which everyone is ill-served. Accused students do not receive the due process they are entitled to before being branded as rapists, victims do not get the justice they deserve, and dangerous predators can be left free to roam campus and society at large.

Whether you are looking at the problem from the perspective of a victim or a student accused of sexual assault, campus administrators are fundamentally ill-equipped to conduct fair, adequate, and thorough investigations into allegations of sexual misconduct. This dilemma cannot be solved by imposing increasingly complex requirements on administrators for a job that properly belongs to law enforcement. Rather, the federal government must realize that cases of sexual misconduct that constitute crimes must be addressed by the criminal justice system, which, despite its failings, has significantly more experience, procedural safeguards, and authority to ensure that justice is done.