Just before four law professors take the stage here to debate whether courts or colleges should decide sexual-assault cases, the ABC News correspondent John Donvan polls the audience of about 250 people.
Should all rape allegations involving college students be handled by the criminal-justice system? Or should campuses continue to use a separate disciplinary process, with different standards and sanctions, and give students who allege such incidents a choice of how to proceed?
The question is misleading. It suggests a black-and-white dichotomy, in which cases fall either to colleges or to the courts, that doesn’t reflect reality.
But the proposition is interesting because it’s not part of a congressional hearing or a session at a higher-education conference. Thousands of people nationwide, of all ages and backgrounds, are listening to the debate online. It’s part of the Intelligence Squared U.S. series, based on a similar British program, where experts engage in a two-sided public forum, moderated by Mr. Donvan, about key issues in the news.
Wednesday night’s event offers a chance to see whether well-crafted arguments can change minds on such a polarized and politicized issue. The audience in the studio and online will hear two legal experts arguing in favor of putting the cases in the courts’ hands, and two maintaining that colleges need to play a decision-making role — in order to protect students’ civil rights under Title IX, the federal gender-equity law, and to properly support victims. Then a second vote is taken of the studio audience to gauge whether people’s views have changed.
Hundreds of online votes poured in before the debate here this week. A glance at the early returns shortly before the arguments begin reveals a lopsided result: Nearly 90 percent of the respondents believe that courts, not colleges, should decide sexual-assault cases.
Strong and Varied Opinions
Among the audience members at the Kaufman Music Center are sexual-assault-awareness activists, parents who say their children were falsely accused of rape, and the vice chair of a local college’s Board of Trustees. At a reception before the debate, several of them say they already have strong opinions about the issue.
Two of the parents talk about their experiences with colleges’ disciplinary processes. They say their sons were found not responsible for sexual assault after both campus and criminal proceedings. The parents also say the events have led them to believe that colleges have too many conflicts of interest and not enough professional knowledge of the law to adjudicate the cases fairly.
But many, perhaps most, of the attendees are not activists or experts in the field. They are students and local residents, brought here by curiosity. Several of them emphasize that they are not yet supporting either side and are eager to learn.
Some New York University students in the studio say they are leaning toward supporting the courts argument, but they want to learn more about Title IX and its nuances. Eliza Northwood, a marketing professional, wonders whether colleges’ punishments, even expulsion, are serious enough for students found responsible for sexual assault. Shawn Chittle, a website and digital-product designer, proposes an unconventional solution: Just let students decide the cases because they understand the “cultural dynamics of a campus” better than any jury or judge would.
The initial vote taken of audience members finds that about one-third of them are undecided. More than half support giving the courts decision-making authority in sexual-assault cases, and just 12 percent support assigning such a role to colleges.
What Constitutes Sexual Assault?
During the debate, one example that the panelists return to several times demonstrates how difficult sexual assault is to define and cope with: A female student in a chemistry lab consistently gets groped by the male student who sits next to her. She is unable to perform her best work because of the other student’s behavior.
Is that a crime punishable by law? Yes, says Jeannie C. Suk, a professor of law at Harvard University. She, along with Jeb Rubenfeld, a Yale Law School professor, are arguing in favor of having the courts handle sexual-assault cases.
If the groping occurs in a public place like Times Square, says Ms. Suk, “it’s a crime. And if it happens in a chemistry lab, it’s also a crime.” She adds that, if she were the female student’s adviser, “I would say, Go to the police, because this is a crime, and if a crime has been committed against you, the person will be arrested.”
It is preferable, however, for colleges to have authority over that kind of situation, argues Stephen J. Schulhofer, a law professor at New York University. He and Michelle J. Anderson, dean of the City University of New York’s School of Law, are on the team arguing against using the courts. “It’s not desirable to send that case to a criminal court, where some immature adolescent is going to wind up on a sex-offender registry,” Mr. Schulhofer says.
Ms. Suk adds that her recommendation might be different “if we were living in a reasonable world with a reasonable Department of Education.”
Despite being on the pro-courts side, Mr. Rubenfeld agrees that groping can probably be dealt with on a campus level. But, he says, groping should not be put in the same category as sexual assault. “If campuses want to have a code against offensive touching, sexual misconduct, sexual harassment — sure, those are things that campuses could do well,” he says. “We are talking about sexual assault here. Let’s not expand that term so that it means all kinds of things.”
Throughout the 90-minute debate, some predictable arguments emerge. Ms. Anderson asserts, to the audience’s applause, that “we’ve had 200 years of history where the courts and the police have not taken sexual assault seriously.” She adds that colleges’ disciplinary processes tend to work more efficiently.
But most colleges are not equipped to deal with forensics and rape kits, contends Mr. Rubenfeld. And college proceedings are rife with conflicts of interest, Ms. Suk says, because they have “a Title IX officer who is charged with compliance with the Department of Education’s dictates. And they are terrified about what’s going to happen if they don’t do things a certain way.”
However, the alternative, Ms. Anderson fires back, “is the era before, where campuses swept these cases under the rug.”
New Tally, Different Result
The post-debate vote comes in. Fifty-six percent of the in-person audience supports having the courts decide sexual-assault cases, an unchanged statistic. The share of support for having colleges do so, on the other hand, more than doubles, while the undecided vote declines to 14 percent. Nearly half of the people in the crowd have changed their minds.
Katie-Rose Nunziato, one of the New York University students at the event, is among those who voted undecided at first but switched to the colleges’ side. Ms. Nunziato says she now realizes the importance of students’ having options, and she sees an opportunity for campus proceedings to evolve and improve over time.
Ms. Anderson says she hopes the vote reflects greater awareness that colleges and courts run “parallel processes, with different remedies for victims and different goals.”
Still, a majority of the voters remain on the side of the courts. Among that group is Mr. Chittle, who says he first voted undecided but was convinced by Mr. Rubenfeld that the seriousness of the crime makes police involvement necessary. Tejas Sawant, another NYU student, says he voted in support of the courts on both occasions; he sees colleges’ proceedings as having “a low deterrent value.”
The result was not the point of the debate, though, Ms. Suk says; it was “a much-needed rational airing of difficult issues.” And ultimately, Mr. Rubenfeld says, he hopes it sends a message to federal officials and college administrators. “If huge numbers of people out there don’t believe in what they are doing,” he says, “they need to see that.”