Wendy Kaminer Highlights VAWA’s Potential Impact on Campus Due Process in ‘The Atlantic’

Wendy Kaminer, noted civil libertarian and member of FIRE's Board of Advisors, has a useful piece on The Atlantic's website discussing the threat to campus due process presented by the latest draft of the Violence Against Women Act's (VAWA's) reauthorizaton bill. 

Citing me, Kaminer writes: 

As Senate Republicans resist renewing the 1994 Violence Against Women Act (VAWA), raising questions about immigration fraud and Indian tribal courts, and Democrats indignantly declare their support of it, civil libertarians should take a hard look at some of the Act's deceptively innocuous provisions. Section 304, which governs the treatment of sexual violence charges on college and university campuses, requires that cases involving allegations of violence or stalking provide for "prompt and equitable investigation and resolution."

What's worrisome about this language? Will Creeley of the Foundation for Individual Rights in Education (FIRE) points out that "prompt and equitable" is a term of art under federal anti-discrimination law. It's construed by the Department of Education's Office for Civil Rights to require a low standard of proof ("preponderance of the evidence") in sexual misconduct cases. 

I want to provide an explanation of why the "prompt and equitable" language is of concern here, and to discuss another due process concern FIRE has with the current text of the VAWA reauthorization bill. 

But first, it's crucial to note that FIRE takes no position on the vast majority of the VAWA reauthorization bill. As we emphasized last October when we issued a press release on the earlier VAWA draft's explicit inclusion of the "preponderance of the evidence" standard of proof for college sexual assault hearings, we are concerned only with the section of the reauthorization bill that impacts due process on campus. VAWA is a huge piece of legislation, and virtually all of it is outside of our mission, save this small but important section.  

So let's look specifically at Section 304 of the latest version of the bill, the only portion of concern to FIRE. Section 304 would amend the Higher Education Act of 1965 to require that all colleges and universities accepting federal funding maintain certain procedures for adjudicating allegations of sexual assault and other crimes. Here's the exact text of the bill, with my emphases:

(iv) Procedures for institutional disciplinary action in cases of alleged domestic violence, dating violence, sexual assault, or stalking, which shall include a clear statement that— 

(I) such proceedings shall—

(aa) provide a prompt and equitable investigation and resolution;  

[...] 

(III) both the accuser and the accused shall be simultaneously informed, in writing, of-

[...]

(bb) the institution's procedures for the accused and the victim to appeal the results of the institutional disciplinary proceeding;

FIRE's concern is with the bolded language above. 

First, the reference to the "prompt and equitable" standard. This is new language, replacing the "preponderance of the evidence" requirement seen in an earlier version of the bill last fall. Our press release from last October voiced alarm about codifying the preponderance of the evidence standard, and we were pleased when Senator Patrick Leahy's office removed that provision from the bill.  

Unfortunately, by replacing the explicit "preponderance of the evidence" requirement with a mandate that university procedures for sexual assault cases must "provide a prompt and equitable investigation and resolution," the bill's authors have reintroduced the problem. 

To be clear, FIRE obviously does want campus disciplinary procedures to be prompt and equitable. Justice, no matter the venue, should always be prompt and equitable; indeed, it's hard to imagine a just result that isn't prompt and equitable. 

However, this "prompt and equitable" standard is essentially a de facto incorporation of the preponderance standard. That's because, as Kaminer notes, the Department of Education's Office for Civil Rights (OCR) troublingly interpreted "prompt and equitable" to require the preponderance standard in its April 4, 2011, "Dear Colleague" letter.  

Here's how: On page 6 of the the April 4 letter, OCR mandates that colleges and universities must "[a]dopt and publish grievance procedures providing for prompt and equitable resolution of student and employee sex discrimination complaints" in order to comply with Title IX. A few pages later, on page 8, under heading (C) ("Grievance Procedures"), OCR states that it has "identified a number of elements in evaluating whether a school's grievance procedures provide for prompt and equitable resolution of sexual harassment complaints," and these elements include the "[a]dequate, reliable, and impartial investigation of complaints." Finally, on page 9 under heading (B) ("Adequate, Reliable, and Impartial Investigation of Complaints"), OCR states that Title IX "requires schools to provide equitable grievance procedures," and that "in order for a school's grievance procedures to be consistent with Title IX standards, the school must use a preponderance of the evidence standard." 

So in OCR's interpretation, an institution's hearing procedures for allegations of sexual harassment and sexual assault aren't "prompt and equitable" unless they use our judiciary's lowest evidentiary standard. That's why FIRE is concerned that the VAWA bill's requirement that institutional procedures be "prompt and equitable" is effectively a backdoor for codification of the preponderance of the evidence standard. (For a detailed discussion of FIRE's concerns about OCR's decision to mandate the preponderance of evidence standard, see our FAQ.)

Second, the subsection that provides "the institution's procedures for the accused and the victim to appeal the results of the institutional disciplinary proceeding" assumes that an institution will maintain provisions for both the accuser and the victim to appeal. As Kaminer writes: 

Moreover, if an accused student is not found guilty, even under this very low standard of proof, his or her accuser may be afforded a right to appeal (under section 304) exposing the accused to double jeopardy. Of course, campus disciplinary proceedings are not formal criminal trials governed by the 5th and 6th Amendments. But you'd have to regard the protection against double jeopardy as a mere constitutional technicality to believe that schools should dispense with it. Or you'd have to assume that, as a general rule, fairness requires convictions and provides multiple opportunities to obtain them.

FIRE has been very concerned about a similar "double jeopardy" provision in OCR's April 4 letter, and this language in VAWA essentially codifies it. 

Again, FIRE takes no position on any other section of VAWA. But like Kaminer, we're concerned about the draft bill’s attempt to codify the due process threats presented by OCR’s mandates.