When College Sexual Assault Panels Fall Short, And When They Help

May 1, 2014
Originally published on May 2, 2014 7:45 am

Thursday, the federal government sent a message that it's taking sexual harassment on college campuses seriously. Education officials released the names of 55 schools facing investigation for their handling of sexual abuse allegations. This comes after the White House issued new guidelines for colleges on Tuesday.

Colleges find themselves increasingly pressed to act as pseudo-courts. Schools have been under fire for discounting complaints, mismanaging cases and meting out punishments that look more like slaps on the wrist. By all accounts, there's plenty of room for improvement.

Still, college discipline procedures can make certain allowances that courts cannot, and school panels can step in when an alleged victim is wary of going to court.

Too Much For Colleges To Take On?

Some say it should come as no surprise that college panels — set up to rule on things like whether Johnny plagiarized his history paper — are now bungling cases of serious and sensitive crimes that even courts have trouble with. Colleges are simply in over their heads, says David Lisak, a consultant on campus sexual assault.

"There is a level of absurdity in making universities handle serious sexual violence cases," Lisak says. "We wouldn't ask universities, of course, to handle a homicide. We don't even ask them to handle serious aggravated assaults."

Indeed, colleges have a fundamentally different mission than the criminal justice system.

"A victim comes in looking for justice. A school looks at the process as an opportunity to educate the assailant about the behavior that was not acceptable," says Colby Bruno, a former prosecutor who now represents victims in campus proceedings.

Bruno says the new federal guidelines will push schools further from that old-school approach of viewing incidents as just a teachable moment, rather than a day in court.

"Schools in the past have been reticent to bring down harsh punishment because, truthfully — and I've heard this time and time again — they didn't want to ruin the accused's life," Bruno says.

Even if adjustments to the process are needed, some worry that the federal government is pushing schools too far.

"Yes, colleges and universities should provide comfort and aid and sensitivity. But if we want to address this problem, let's call it what it is: It's a crime. And let's turn it over to police and to courts," says Anne Neal, president of the American Council of Trustees and Alumni, a nonprofit that focuses on academic freedom and accountability.

"By creating a shadow system of campus justice, I think what we're going to do is end up trampling on constitutional rights," Neal says, "and will likely harm more than it will help."

How School Panels Differ From Courts

In many ways, colleges have less power than law enforcement. They can't subpoena evidence or witnesses, for example.

In other ways, colleges have a lot more leeway. For example, while prosecutors routinely drop criminal cases that would be hard to prove "beyond a reasonable doubt," campuses have a lower bar. They need only a "preponderance of the evidence," which means that an offense was more likely than not to have occurred.

Also, in the courts, the onus is on the accuser to prove a crime, but campuses can put the burden on the accused to prove they actually had sexual consent.

"The colleges' disciplinary process can actually capture a lot more conduct that is inappropriate that [in] the criminal justice system would never, ever result in criminal convictions," says Djuna Perkins, a former prosecutor who's now a consultant to colleges.

As Perkins sees it, adjudicating rape cases — and ensuring a safe learning environment — is absolutely within the purview of colleges.

A Complement, Not A Substitute

Addressing sexual assault cases is both a moral and a legal necessity for schools, just as it is for employers or the military, says Amherst College President Carolyn Martin.

"There is probably no institution in the country that ought not to see it as fitting that they protect people from violence of any kind," says Martin, whose school has come under fire for its handling of sexual violence cases.

Colleges and universities often end up as the sole adjudicators of sexual assault cases because many alleged victims can't or won't go through a criminal justice system that they believe will only re-traumatize them.

Martin says campuses are a complement to the courts, not a substitute; the two have separate and distinct roles.

Even if courts were doing a perfect job, she says, that wouldn't let colleges off the hook. Amherst recently launched a new model for handling complaints. Rather than try to train English professors and college students to be judge and jury, Amherst outsources the job to a panel of experts.

Many other schools might be reluctant to give up their autonomy in that way, but the pressure to get it right is growing, and it's not only coming from the government.

Colleges used to fear getting sued for expelling a student for sexual assault. Now, they also worry about getting sued if they don't.

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Transcript

ROBERT SIEGEL, HOST:

The federal government took another step today to tackle the issue of sexual assaults at colleges and universities. The Education Department released the names of 55 schools currently facing an investigation into their handling of abuse complaints. Earlier in the week, the White House issued new guidelines on how to better protect students.

NPR's Tovia Smith reports that many schools find themselves increasingly pressed to become what amounts to a pseudo-court.

TOVIA SMITH, BYLINE: By all accounts, schools have plenty of room for improvement in how they handle allegations of sexual assault. For years, students have complained about claims being discounted, cases mismanaged, and punishments that look more like slaps on the wrist.

LENA SKLOW: Why does he get to stay? Why does he get to graduate? Because I'm not coming back if he's here. So then I don't get to graduate.

SMITH: Lena Sklow staged a rally at Brown University last week, complaining that the student Brown found responsible for raping and chocking her was only suspended for a year. University officials have since said he's opted not to come back. And along with others around the nation, they're working on improving.

But as they do, some say it should come as no surprise that college panels, set up to rule on things like plagiarism, end up bungling cases that even courts have trouble with.

DAVID LEESAK: There's a level of absurdity in making universities handle serious sexual violence cases. We wouldn't ask universities, of course, to handle a homicide. We don't even ask them to handle serious aggravated assaults.

SMITH: David Leesak(ph), a consultant on campus sexual assaults, says college panels are simply in over their heads.

LEESAK: You know, they are intelligent and they are earnest, but we are really asking them to take on a job that is just way beyond the purview of what any of them ever signed up for.

SMITH: Indeed, colleges have a fundamentally different mission than the criminal justice system. Colby Bruno(ph) is a former prosecutor who now represents victims in college proceedings.

COLBY BRUNO: A victim comes in looking for justice; a school looks at the process as an opportunity to educate the assailant about the behavior that was not acceptable.

SMITH: Bruno says the new federal guidelines will push schools further from that old-school approach of viewing incidents as just a teachable moment.

BRUNO: Schools in the past have been reticent to bring down harsh punishment because truthfully - and I've heard this time and time again - they didn't want to ruin the accused's life.

SMITH: But even if some adjustment is needed, some worry the federal government is pushing schools too far.

ANNE NEAL: Yes, colleges and universities should provide comfort and aid and sensitivity, but if we want to address this problem, let's call it what it is. It's a crime, and let's turn it over to police and to courts.

SMITH: Anne Neal is with the American Council of Trustees and Alumni, a nonprofit that focuses on academic freedom.

NEAL: By creating a shadow system of campus justice, I think what we're going to do is end up trampling on constitutional rights and will likely harm more than it will help.

SMITH: In many ways, colleges have less power than law enforcement. They can't subpoena evidence or witnesses, for example. But in other ways, they have more leeway. While prosecutors routinely drop criminal cases that would be hard to prove beyond a reasonable doubt, campuses need only a preponderance of the evidence, which means more likely than not.

Also, in the courts, the onus is on the accuser to prove a crime, but campuses can make the accused prove they actually had sexual consent. Juno Perkins(ph) is a former prosecutor who is now a consultant to colleges.

JUNO PERKINS: The college disciplinary process can actually capture a lot more conduct that's inappropriate that the criminal justice system would never, ever result in criminal conviction.

SMITH: As Perkins sees it, ruling on rape cases and ensuring a safe learning environment is absolutely within the purview of colleges. Biddy Martin, president of Amherst College - that's also come under fire recently - says it's both a moral and a legal necessity for schools, just as it is for employers or the military.

BIDDY MARTIN: There's probably no institution in the country that ought not to see it as fitting that they protect people from violence of any kind.

SMITH: Rather than try to train English professors and college students to be judges and juries, Amherst outsources the job to a panel of experts. The pressure to get it right is not just from the government. Colleges who used to fear getting sued if they expel a student for sexual assault now also worry about getting sued if they don't. Tovia Smith, NPR News. Transcript provided by NPR, Copyright NPR.