For the last several years, the federal government’s crusade against campus sexual assault has largely taken the form of measures to curtail the due process rights of accused students. The federal pressure on campuses to convict more students began in earnest in 2011, when the Obama administration issued a “Dear Colleague” letter requiring colleges to use the lowest possible burden of proof—preponderance of the evidence—in sexual assault hearings, among other procedural changes designed to increase the number of guilty findings. The federal campaign escalated since that time, with the Office of Civil Rights issuing more mandates broadening the definition of sexual misconduct and pressuring colleges to crack down on a rape crisis they claimed had reached epidemic proportions. Congress has largely gone along; last year, Senator Claire McCaskill held one-sided hearings on the subject and then introduced new campus sexual assault legislation that did not address due process concerns.
Now, it appears that some people in Washington are finally beginning to recognize that the federal crackdown has gotten out of hand, and that basic due process rights are in jeopardy on campuses around the country. The Washington Post reports on a bill, introduced by three Republican members of Congress, that would help ensure that students accused of sexual assault—as well as their alleged victims—are treated fairly throughout the process:
As heated debate continues over how to handle allegations of sexual assault on college campuses, another bill is about to be thrown into the mix – this one most notable for its efforts to ensure that students are able to get a fair hearing on campus, and give law enforcement a more prominent role in such cases.
It also could trigger concern from victims’ advocates who have long pushed to make it easier for students to report violence, and who point to evidence that students may be hesitant to ask for help if they feel a complaint would automatically trigger a criminal investigation or other harsh sanction.
The House bill, sponsored by Republican Reps. Matt Salmon of Arizona and Pete Sessions and Kay Granger of Texas, is expected to drop Wednesday morning.
Joseph Cohn of the Foundation for Individual Rights in Education (FIRE) has a post clearly describing the legislation, known as the “Safe Campus Act of 2015.” According to Cohn, it would: (1) “encourage victims to report allegations to law enforcement professionals by making it a prerequisite for requesting a campus disciplinary hearing,” (2) provide “both alleged victims and accused students the right to hire lawyers to represent them throughout the process” and (3) require that colleges provide “students with timely access to all available evidence.” Finally, it would repeal the 2011 Dear Colleague letter that prompted so many colleges to stack their procedures against the accused.
Campus tribunals, operating under pressure from draconian federal policies, have failed to provide a fair process—both to accused students and to their alleged victims. This bill would create a bigger role for law enforcement professionals, and a smaller role for campus bureaucrats, in adjudicating these very serious cases. When the cases are adjudicated in campus courts, the bill would ensure that the process is more transparent, less improvised, and more consistent with notions of basic fairness.
Even if it passed through Congress, the bill most likely could not escape President Obama’s veto pen. But as the first piece of federal legislation to challenge the politically correct consensus that the only possible response to campus sexual assault is to simply throw due process out the window, the Safe Campus Act of 2015 could change the terms of the debate.