Congress Introduces Due Process Legislation: The Safe Campus Act

This morning, Representatives Matt Salmon, Pete Sessions, and Kay Granger introduced legislation on campus sexual assault that would provide meaningful due process protections for the accused. The bill, the Safe Campus Act, includes many common-sense provisions that, if implemented, would make campus adjudications fairer and more reliable.

FIRE has repeatedly expressed our reservations about entrusting universities to adjudicate allegations of serious felonies like sexual assault. But if they are to continue to hold this responsibility, basic fairness requires students be given tangible due process protections.

The due process protections provided by the Safe Campus Act would enhance the reliability of campus proceedings and lend sorely needed credibility to their findings. One key feature of the bill would encourage victims to report allegations to law enforcement professionals by making it a prerequisite for requesting a campus disciplinary hearing. Sexual assault is a serious crime. Allegations of sexual assault should be investigated by impartial, trained law enforcement officers with the necessary skill and expertise to reach just conclusions, and the punitive power to hold those convicted accountable to the victim and society.

FIRE agrees with the bill’s sponsors that punitive interim measures should be waived if a complainant does not report the accusation to law enforcement for investigation. Currently, when the police aren’t called, allegations of criminal misconduct are adjudicated by a patchwork campus system that has proven unable to fairly and competently adjudicate these accusations, frequently sacrificing the rights of the accuser, the accused, or both parties. FIRE does recommend, however, that non-punitive interim measures and accommodations be made available regardless of the student’s decision to report. While colleges have unsurprisingly proved incapable of competently determining the truth or falsity of felony allegations (they aren’t real courts, after all), they are well-equipped to secure counseling for alleged victims, provide academic and housing accommodations, secure necessary medical attention, and provide general guidance for students who navigate the criminal justice system.

The bill also provides both alleged victims and accused students the right to hire lawyers to represent them throughout the process. (FIRE worked to get similar provisions passed into law in North Carolina and North Dakota and is supporting a Massachusetts bill that is still pending.) The Safe Campus Act provision states:

The institution shall permit each party to the proceeding to be represented, at the sole expense of the party, by an attorney or other advocate for the duration of the proceeding, including during the investigation of the allegation and other preliminary stages prior to a formal hearing or similar adjudicatory proceeding, and shall permit the attorney or other advocate to ask questions in the proceeding, file relevant papers, examine evidence, and examine witnesses.

The right to counsel is an important procedural protection not just for the accused, whose statements in campus proceedings can be admitted against them in subsequent criminal proceedings, but also for complainants. Institutions that are proceeding with expulsion hearings may not intentionally aim to sweep accusations under the rug, but they may still be incompetent in making the case against the accused and even complicate later criminal proceedings—because, again, they are not courts or law enforcement. By providing the complainant the right to have a lawyer who can, among other things, examine witnesses, complainants will also have more assurance that the questions they want asked will be asked. Moreover, the bill provides a rape shield provision, so complainants will not be forced to answer irrelevant questions about their sexual histories.

The fundamental fairness of campus procedures will also be enhanced by the bill’s requirement that “all parties to the proceeding have access to all material evidence, including both inculpatory and exculpatory evidence, not later than one week prior to the start of any formal hearing or similar adjudicatory proceeding.” Providing students with timely access to all available evidence may seem like a no-brainer, but many campuses fail to do so. If this provision is passed into law, colleges will no longer be able to conceal evidence that doesn’t fit their desired outcome.

The bill also contains a provision that forbids colleges from having individuals play multiple roles in the investigatory and adjudicatory process. For example, a victim counselor or victim advocate would be precluded from serving as an investigator, prosecutor, adjudicator, or appellate adjudicator, and vice-versa. This provision will reduce the number of conflicts of interest to everyone’s benefit.

Another provision prevents institutions from disciplining students for nonviolent conduct infractions discovered as a result of good-faith reports of sexual assault. This will help alleged victims and witnesses speak freely about the events in question without fear that their cooperation in the investigation will get them in trouble on campus.

In addition to these measures, the Safe Campus Act would also repeal the Department of Education’s Office for Civil Rights’ (OCR) misguided and unlawful mandate that institutions use the “preponderance of the evidence” standard of proof in these hearings. This would return that decision to the state, system, or campus level and would be an important step towards fundamental fairness.

As I told The Washington Post for an article this morning, “Hopefully this [bill] is going to go a long way in changing the policy discussion, which for too long has been one-sided in Washington.” To date, much of the debate about campus sexual assault on Capitol Hill has focused on the Campus Accountability and Safety Act (CASA), which includes provisions FIRE supports as well as provisions FIRE opposes. One of FIRE’s biggest criticisms of CASA is its lack of meaningful due process protections. In an ideal world, the best parts of each bill would be combined so the needs of all students are taken into account. While there are some aspects of the bill we would change, there is a lot to like in the Safe Campus Act. We hope Congress will adopt its key provisions.