Third Campus Sexual Assault Bill Introduced in Congress: Still No Provisions Addressing Due Process

This week, FIRE has covered two bills introduced in Congress regarding sexual assaults on college and university campuses. Now the Campus Accountability and Safety Act (CASA) and the Survivor Outreach and Support Campus Act (SOS Campus Act) are joined by a third piece of legislation, the Hold Accountable and Lend Transparency on Campus Sexual Violence Act (HALT Campus Sexual Violence Act or HALT Act).

Earlier this week, FIRE issued a statement on CASA and wrote about the SOS Campus Act. One aspect of CASA that FIRE finds troubling is that it grants extremely broad enforcement powers to the Department of Education (ED). The provision granting ED such extraordinary power reads:

(1) IN GENERAL.—Upon determination, after reasonable notice and opportunity for a hearing, that an educational institution that is an institution of higher education has violated or failed to carry out any provision of this section in a factual circumstance related to sexual violence or any regulation prescribed under this section related to sexual violence, the Secretary of Education or Attorney General, may impose a civil penalty upon such institution of not more than 1 percent of the institution’s 1-year operating budget, as defined by the Secretary of Education, for each violation or failure. [Emphasis added.]

Under this provision, if ED concludes that violations occurred, it can impose fines equal to 1 percent of the institution’s operating budget for each violation. At institutions that receive limited federal funding, these fines could actually exceed the the amount of federal funding the institution receives. Compounding this problem, under CASA, money collected from the fines would go directly to ED’s Office for Civil Rights, which provides a perverse incentive for the agency to find violations.

The HALT Act, introduced by Representatives Jackie Speier and Pat Meehan, also grants ED broad enforcement powers. Its penalty provision provides ED with the authority

to impose a civil penalty to be paid by institution of higher education that has violated a law under the jurisdiction of the Office for Civil Rights, the amount of which shall be determined by the gravity of the violation, and the imposition of which shall not preclude other remedies available under Federal law.

There is literally no limit to the amount of the fines ED could impose under the HALT Act.

FIRE is not opposed to fines for wrongdoing, but granting ED such broad discretion and authority is likely to be troublesome. After all, ED has been the architect of new campus rules to address allegations of sexual misconduct that have reduced due process protections by lowering the standard of evidence and reducing opportunities for accused students to cross-examine witnesses. Moreover, the department has yet to take a single action against a university for violating the rights of an accused student. Until FIRE sees tangible efforts on the part of ED to advance the rights of all students, we have little confidence that the department will use this newfound authority evenhandedly.

Another reason why FIRE believes it would be a mistake to grant ED even further discretion is because universities are already overreacting to ED mandates by reducing the rights of the accused simply to avoid scrutiny the government, a phenomenon that has been observed and commented upon by others including the National Center for Higher Education Risk Management (NCHERM). If ED is given enhanced powers, this problem will be exacerbated.

FIRE isn’t alone in its observation that Congress has thus far failed to address the rights of the accused. Yesterday, The Washington Examiner raised six questions about CASA and its potentially detrimental effects on due process on campus and emphasized, “Nowhere does it mention any kind of support services for those accused.” One of the Examiner’s questions was, “Will there be ‘support services’ for the accused?” Senator Marco Rubio’s staff provided his answers to those questions, which can be read on the Examiner’s website. In response to that question, Senator Rubio’s spokesperson answered, “This bill does not address this issue.”

Although there are certainly positive aspects of these bills—for example, FIRE applauds CASA’s provision that ensures that student-athletes will not be given preferential treatment because of their status—we cannot emphasize enough that there is not a single provision in any of these bills that will advance the due process rights of accused students, while some aspects of these bills may exacerbate the due process problems on campus. FIRE hopes to work cooperatively with legislators, including Senator Rubio, to address this issue in a manner that is protective of the rights of all students, complainants and accused alike.