Polis Apologizes for ‘Gaffe’ But Doubles Down on Failed Campus Sexual Assault Policies

Colorado Congressman Jared Polis earned heavy criticism from the media last week for his shocking suggestion that college students accused of sexual assault should be expelled even if they are innocent. The controversial remark was made in the course of questioning FIRE’s Joe Cohn during a hearing on “Preventing and Responding to Sexual Assault on College Campuses” held by the House Education and Workforce Committee’s Subcommittee on Higher Education and Workforce Training on September 10. During the hearing, Joe testified about the high stakes for all parties, and the many problems with how sexual assault cases are being handled at colleges and universities.

Yesterday, Polis sought the forgiveness of his constituents for his contempt for fundamental fairness. Writing in Boulder’s Daily Camera, Polis apologized and explained that he “misspoke” when he said at the hearing that “[i]f there are 10 people who have been accused, and under a reasonable likelihood standard maybe one or two did it, it seems better to get rid of all 10 people.” (One Twitter user aptly reminded readers that Polis’ dim view of due process earned significant applause from hearing attendees, writing: “if Polis misspoke I suppose the audience misclapped?”)

But despite the mea culpa, Polis’ statement nevertheless reaffirmed other misguided arguments about colleges’ adjudication of sexual assault allegations. Indeed, Polis’ entire exchange with Joe should concern due process advocates.

Polis writes:

To most people who don't know much about this issue, it makes sense to solely adjudicate these cases in our criminal justice system, just like we do other crimes. ...

However, this is a deeply dangerous idea that demonstrates a cursory and superficial understanding of the issue. Ask any sexual assault advocate and they'll tell you the same thing.

FIRE has been defending student due process rights for 15 years. We have been studying the legal, practical, and moral implications of colleges’ handling of sexual assault cases with particular care since the Office for Civil Rights’ April 4, 2011, “Dear Colleague” letter. We receive hundreds of case submissions every year by students impacted by college and university policies regarding sexual assault. With each major policy initiative announced by the federal government, FIRE provides extensive analysis about its impact on student rights. Our analysis is neither cursory nor superficial.

Nor are we alone in recommending that campus sexual assault allegations should be dealt with by law enforcement. Last year, the Rape, Abuse & Incest National Network (RAINN)—one of the nation’s leading victim-advocacy groups—sent a letter to the White House Task Force to Protect Students from Sexual Assault arguing that it is “imperative that colleges and universities partner with local law enforcement around these crimes – from the time of report to resolution” to ensure that alleged sexual assaults are handled by trained and competent law enforcement professionals. RAINN wrote:

It would never occur to anyone to leave the adjudication of a murder in the hands of a school’s internal judicial process. Why, then, is it not only common, but expected, for them to do so when it comes to sexual assault? …

… [T]he simple fact is that these internal boards were designed to adjudicate charges like plagiarism, not violent felonies. The crime of rape just does not fit the capabilities of such boards. They often offer the worst of both worlds: they lack protections for the accused while often tormenting victims.

The public agrees with our common-sense view. A recent nationwide survey showed that 91 percent of likely voters believed that local law enforcement, not college administrators, “should be primarily in charge of investigating alleged sexual assaults on college campuses.” This shouldn’t be surprising, given how poorly the public thinks colleges handle sexual assault cases. For two years running, a survey conducted by Huffington Post / YouGov has found that Americans have vanishingly little trust in colleges’ ability to fairly adjudicate sexual assault claims. In 2014, only 12 percent of respondents agreed that colleges do a “good job” of addressing sexual misconduct; in 2015, that number inched up to 14 percent.

Members of Congress have also argued that it’s time to let law enforcement professionals handle sexual assault allegations. Senator Sheldon Whitehouse noted in a hearing on sexual assault last year that without prompt involvement by law enforcement, critical evidence can be lost, hindering what might have been a successful case against a rapist. As Polis laments the low success rate of prosecutions for sexual assault, he should keep that factor in mind. And just last month, the National District Attorneys Association voiced its support for legislation that would encourage complainants to bring their cases to the police and provide due process protections for the accused.

Do all of these people have just a “cursory and superficial understanding of the issue”? Polis’ dismissive characterization is regrettable.

Polis next argues that the criminal justice system is “inadequate” and that survivors need a campus system because they don’t report to the police, “citing things like not thinking it's important enough, not wanting others to know, not having proof, fearing retaliation, and being uncertain about whether what happened constitutes assault.” But the solution to these concerns should include preventive education about sexual assault and better training for law enforcement, not a misplaced reliance on a parallel justice system where all the same problems—and more—can and will continue to exist. The criminal justice system alone has the legal and investigative tools to help fact-finders reach a reliable verdict: tools like subpoena power, forensic experts, rules of evidence, testimony under oath, and public accountability. Campus tribunals lack these tools and safeguards, as well as many others, and both accused students and complainants continue to suffer as a result.

The examples of colleges’ failures are abundant. The University of North Dakota expelled former student Caleb Warner for an alleged sexual assault and rejected his request for a new hearing even after law enforcement had conclusively determined that his accuser had lied. The university finally vacated the charges after FIRE pressured it to do so. In July, a California court held that a University of California, San Diego student’s due process rights were violated when the school, among other transgressions, impeded the student’s ability to cross-examine his accuser. And a Tennessee state court ruled last month that the University of Tennessee at Chattanooga’s use of the “affirmative consent” standard was “flawed and untenable” because it effectively required the accused student to prove his innocence. The list could go on. And FIRE is far from alone in recognizing the harm done to accused students via the campus status quo.

And it’s not just accused students who suffer at the hand of campus courts. We’ve also recognized the myriad ways campus investigations fail complainants. For example, Baylor University recently failed to find that even a low, “preponderance of the evidence” standard supported a decision even to pursue campus charges in a sexual assault case, while the accused was later found guilty beyond a reasonable doubt in the criminal case against him. That result shouldn’t fill anyone with confidence about campus investigators’ abilities to collect evidence and reach a just result—even in cases where there appears to be conclusive evidence.

Meanwhile, in a sexual assault case at the University of Michigan, both the accuser and the accused are arguing that the university’s proceedings were unfair and inadequate. The university recently reversed its finding against the accused after a federal court rejected the school’s motion to dismiss the accused student’s due process lawsuit. Despite receiving a result in her favor in the campus proceedings, the complainant spoke out against the university’s handling of the case and even filed a complaint with OCR. She wrote in a statement released through her lawyer:

I caution all University of Michigan students and their parents to avoid reporting sexual violence or using the University’s Title IX process at all costs. … [T]he biggest threat on campus has now become the Title IX Sexual Assault Policy as implemented by the University. [Emphasis added.]

Let that sink in for a minute.

Even if their procedures are properly implemented and a proven rapist is expelled, campus tribunals simply do not have the power to put violent criminals where they belong—in jail—and keep them from attacking again. By working to fix whatever problems exist in the criminal justice system instead of relying on an inherently inadequate campus system, all members of the local community will be safer, including those who don’t go to college. When it comes to addressing sexual assault, why should only college students receive attention from the federal government? If law enforcement does a subpar job of addressing sexual assault, shouldn’t we fix it, rather than grant those among us lucky enough to go to college special attention? Equipping and training the criminal justice system to better respond to allegations of sexual assault would be a much better result than expelling students found guilty in campus proceedings, which simply allows an attacker to prey somewhere else—perhaps on the less privileged. It’s no wonder, as I mentioned above, that the vast majority of the public supports law enforcement handling sexual assault cases.

Polis characterizes this strategy as “tell[ing] schools to wash their hands of all responsibility on the issue and refer every student to a court system.” But that’s a blatant distortion of what FIRE is actually advocating. As Joe clearly stated in his testimony, and as FIRE has said before, colleges should respond to sexual assault allegations by offering complainants the resources and information they’re well-equipped to provide: housing, academic accommodations, or counseling, for example. These sorts of non-punitive measures can be taken promptly while the issue of the accused student’s actual guilt or innocence is properly left to professionals.

In the Daily Camera, Polis briefly acknowledges that students’ lives can be changed forever by an accusation of sexual assault, “even if they are found not guilty.” That last bit seems to be the key to Polis’ cavalier attitude toward fair hearings. As he opined while responding to questions from Reason’s Robby Soave, “there really is no winning once the accusation is made.” So if, hypothetically, his own son was subjected to a baseless accusation, Polis would just “suggest he transfer or take courses online.” Essentially, his argument goes, your life is ruined either way, so even why bother trying to clear your name? To put it mildly, this is hardly a defense of schools’ failure to provide students due process.

Polis closes by writing that our goal should be “college campuses where survivors feel empowered to come forward and where administrators have the resources they need to handle these cases promptly, fairly and equitably.” Well, law enforcement does have resources to handle these cases—more than campuses will ever have—so our goal should be campuses where survivors feel empowered to come forward to the police. Whole communities—not just campuses—will be safer as law enforcement gets rapists off the streets. Procedural safeguards will help ensure innocent people are not punished. And survivors will benefit, too. If educational institutions don’t have to spend their time and money struggling to maintain a quasi-judicial system, they can focus more on helping complainants by providing academic accommodations and counseling—and, of course, educating students.

That is, after all, what they’re there for.

Photo Credit: Mark Leffingwell, The Daily Camera