A good rule of thumb when considering campus due process matters: If the Senate’s two most ardent foes of campus civil liberties, Kirsten Gillibrand and Claire McCaskill oppose something, the measure is probably worth a good look. The Safe Campus Act, which recently received criticism from the two senators, deserves more than a look.
It seeks to overturn the Office for Civil Rights mandate that colleges use the preponderance of evidence standard. It also says that while colleges can accommodate sexual assault accusers in any way desired (changing a class schedule, providing counseling, offering extensions on work), schools cannot initiate disciplinary proceedings unless the accusers report the allegation to police. The effect of the provision: ensuring that a student accused of sexual assault is judged on basis of evidence compiled by professionals rather than a campus Title IX bureaucracy,
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Given their record on the issue, it’s no surprise that McCaskill and Gillibrand oppose the measure. Their arguments for doing so, however, are remarkable. Here’s McCaskill, in a quote that appeared in both Slate and Huffington Post: “You have this anomaly they’re proposing, where a young woman could be robbed at gunpoint and decide that she wanted to just try to get that person off campus and go to her university and they could take action under Title IX. But if she was raped, she would not be able to do that unless she made the decision to go to the police.”
This statement is strange. Does McCaskill—a former prosecutor—actually believe it would be a good idea for armed robberies to be adjudicated by the campus system? And could she really believe that victims of armed robberies could take action under Title IX? Even OCR has never described armed robbery as a crime that schools must adjudicate under Title IX.
More to the point, does McCaskill believe that student victims of armed robberies are currently being adjudicated through the campus disciplinary process? This is a bit like OCR head Catherine Lhamon’s recent, absurd claim by that campus’s tribunals’ deal with “drug dealing” cases. Imagine the resident Title IX investigator needing to jet off to Mexico to investigate the drug lords supplying her campus.
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It seems that some foes of The Safe Campus Act are inventing a reality, falsely claiming that college disciplinary proceedings investigate all sorts of violent crimes—drug dealing, armed robbery, perhaps even attempted murder—to justify their calls for colleges to adjudicate the violent crime of sexual assault. In fact, the only serious felony that OCR wants colleges to handle is sexual assault.
Gillibrand, meanwhile, has said that she opposes the Safe Campus Act because the “goal of any campus sexual assault legislation should be to encourage [alleged] survivors to report crimes.” Indeed, it should—and this is exactly what the Safe Campus Act does. This is in contrast to campus rape groups like Know Your IX, with which Gillibrand regularly cooperate, and which have openly discouraged crime victims from going to police, suggesting that accusers who file reports with the “violent criminal legal system” might be deported.
Slate writer Christina Cauterucci is remarkably non-curious as to why sitting U.S. senators could oppose a bill seeking to have more crime victims report their crimes to police. “If the Safe Campus Act were truly about due process,” she muses, “plenty of other students’ rights activists would have rallied behind it.” Really? When has any campus rape group backed meaningful due process—provisions such as mandatory discovery, the right to cross-examination, a rule requiring colleges to turn over exculpatory evidence, allowing the accused student enough time to develop his defense?
Is this the result of imagining a campus reality that doesn’t exist?
Title IX deals with sexual discrimination, so I don’t understand how Senator McCaskill thinks that armed mugging is a Title IX issue.
Senator Gillibrand wrongly promoted the “1-in-5” statistic by misusing a 2007 study that was conducted at two campuses. Furthermore, regarding the gang rape hoax at University of Virginia, she dismissed the dishonesty of the accuser and advocate who catalyzed the fiasco. Finally, she invited self-proclaimed victim Emma Sulkowicz to the 2015 State of the Union Address, despite Sulkowicz’s rape accusation having NO substance with Columbia University nor two assistant district attorneys. On the next day in the Huffington Post, Gillibrand commented that “her [Sulkowicz’s] rapist is still on campus.”
OCR promotes a surrogate judicial system on campuses for adjudicating sexual assault because it maximizes the probability that an accusation results in punishment. Senators Gillibrand knows this, which is why she prefers Title IX over the criminal justice system.
The “preponderance of evidence” standard (which the current bill seeks to change) means that if the people adjudicating the case are 51-100% certain of guilt, they find the accused to be guilty. Let us assume that an adjudicating body is 75% certain of guilt. This implies that they will be wrong 25% of the time. That implies quite a few wrongfully convicted individuals will face sanctions, probably expulsion. Once an accused person is expelled from one college or university, what are his or her chances of being admitted elsewhere? Raising the evidentiary standard to “clear and convincing” is a step in the right direction. (this comment has been cross-posted at the Huffingtonpost)