Should Colleges Be Judging Rape?

Four years after the U.S. Education Department admonished colleges to take their role in responding to sexual assault more seriously, a consensus is emerging among some campus officials and legal experts that the government’s guidance is not only unrealistic but exceeds its legal authority. The amount of money and effort colleges are devoting to try to meet the mandates for adjudicating sexual misconduct, they say, is unsustainable.

Even as colleges attempt to follow the government’s recommended procedures for judging allegations of sexual assault, under threat of losing federal funds, they’re facing more scrutiny from lawmakers, plus a torrent of lawsuits and complaints from students. More than 100 institutions are under federal investigation for purportedly botching cases. To deal with students’ complaints, some of which are taking years to resolve, the Education Department’s Office for Civil Rights has asked Congress for money to hire 200 more investigators.

While few deny that sexual assault is a problem on campuses, no one seems satisfied with colleges’ response so far. Victims and their advocates fault officials for missteps and callous disregard, while accused students who were suspended or expelled are increasingly suing their institutions, charging that they were denied due process. “Right now, the process … on college campuses serves no one,” said Sen. Kirsten Gillibrand, Democrat of New York, a cosponsor of a new bipartisan bill meant to tackle the “scourge of campus sexual assaults head on.” As she puts it: “It’s a broken system.”

Law professors, meanwhile, oppose new policies they say tip the scales against those who are accused, and question the legality of the federal guidelines. Faculty members at two law schools — Harvard University and the University of Pennsylvania — wrote open letters in the last six months objecting to new systems for dealing with sexual assault on their campuses. “Although we appreciate the efforts by Penn and other universities to implement fair procedures, particularly in light of the financial sanctions threatened by OCR,” wrote the Penn professors, “we believe that OCR’s approach exerts improper pressure upon universities to adopt procedures that do not afford fundamental fairness.”

Public outcry is growing louder, as some observers express bitter dissatisfaction with how young women say campuses have treated them, while others contend that a climate of moral outrage is harming young men. The recent documentary The Hunting Ground denounces colleges for playing down or ignoring reports of rape. And Rolling Stone’s retraction of an article about a gang rape at the University of Virginia may have heightened anxieties in both camps.

“I don’t know that American higher education was ready for this,” says Peter F. Lake, director of the Center for Excellence in Higher Education Law and Policy at Stetson University. “The level of accountability and scrutiny is extraordinary. We feel mistrusted by everyone.”

Administrators may be able to offer support to victims and helpful prevention programs, but are colleges really suited or equipped to judge whether a student committed rape? Although few campus officials want to say so publicly, in private some concede that the answer is no.

But if the current system isn’t working, then who should be responsible for dealing with campus sexual assault? Some people are suggesting alternatives.

Despite the high stakes and rising debate, many campus officials are deeply committed to ending sexual misconduct and argue that they should be in charge of investigating and adjudicating reports of assault. “We have this obligation to keep our students safe,” says Jody Shipper, executive director of the Office of Equity and Diversity at the University of Southern California. “This is not something we can shirk.”

Some administrators say colleges are doing a good job, considering the obstacles. “They are adding staff, improving procedures, and training investigators,” says Howard Kallem, Title IX coordinator at Duke University. “Does that mean they aren’t going to get sued? They very well might. But despite the publicity, many colleges are in fact getting it right.”

College officials can’t afford to ignore their responsibilities to handle sexual assault. Beyond the moral imperative, if a college doesn’t resolve students’ reports promptly and fairly, the Education Department may find that it violated their rights under the gender-equity law known as Title IX and created a hostile environment for learning. Since Title IX was passed in 1972 to bar sex discrimination, courts have interpreted that to include sexual harassment and assault. The penalty for colleges that fall short, in theory, is the loss of all federal money.

As that’s never happened, the bill sponsored by Senator Gillibrand also proposes a fine of up to 1 percent of a college’s operating budget when it is found to have violated Title IX.

Campus officials are uniquely poised to do many things to keep students safe on campus. They can preserve the educational opportunities of victims by providing special accommodations, helping them avoid running into their accused perpetrators in the classroom or the dorm. Regardless of whether an assault charge goes to the police or whether prosecutors pursue it, the criminal-justice system can’t take those protective measures.

Common perceptions that the legal system is intimidating — and reluctant to take on acquaintance-rape cases involving one person’s word against another’s — prompt many students to look to their colleges for justice. If an accused perpetrator is found responsible, he may be suspended or expelled.

But if the criminal system often won’t handle date-rape cases, why should higher education be able to? “It’s unfair to ask that colleges become criminal courts,” says Scott A. Coffina, a lawyer who works with colleges on sexual-assault investigations.

That hasn’t stopped them from trying. Colleges are scrambling to revamp policies for handling reports of assault. Some are separating sexual misconduct from other disciplinary-code violations and relying less on professors and students to adjudicate assault cases, instead hiring high-priced lawyers, investigators, and former judges.

All the while, colleges are trying to interpret new guidelines, seeking advice from a burgeoning industry of campus consultants. The directives keep coming. The Education Department continues to issue guidance, and state lawmakers are also stepping in. California now compels all colleges to define consent among students as an affirmative, continuing agreement to engage in sexual activity. New York’s governor, Andrew M. Cuomo, has required a similar standard — “yes means yes” rather than the traditional “no means no” — of campuses in the state’s public system, while four other states are considering such a standard.

Colleges have spent more than $100 million in an attempt to meet their Title IX obligations regarding sexual assault since 2011, estimates Mr. Lake, of Stetson. That’s when the Education Department issued its infamous “Dear Colleague” letter, exhorting colleges to take their legal obligations to handle students’ reports of assault more seriously, by conducting prompt, fair investigations.

A lot of the money goes to beefing up campus Title IX offices. Some of the top Title IX coordinators command at least $150,000 in salary and benefits a year, more than the average pay of full professors at many universities. And institutions are expanding their Title IX offices, which means they must make financial trade-offs with other divisions. “Everyone believes it’s worth spending a lot of money to protect students from sexual assault,” says Mr. Lake, “but the question is, Is it working?”

Even if institutions follow federal guidelines to a T, they still face inherent conflicts in adjudicating complaints. They must play several roles at once: investigator, judge, and support staff for both alleged victims and perpetrators. That can lead to resentment and confusion when, say, the same person who has been listening sympathetically to an account of rape then asks prying questions as part of an investigation.

“College administrators really are there to help students, that’s why they got into that work,” says Mr. Coffina. “Then they get into a situation where they have to decide something that will affect one or both of these students for the rest of their lives. The stakes and the pressure on them are really high.”

The limits of campus disciplinary systems can also make it hard for them to deliver justice. Under new regulations, students can have lawyers by their sides during hearings and investigations. But colleges cannot issue search warrants, compel students to submit evidence, or subpoena witnesses. No one is under oath to give information truthfully.

And unlike court proceedings, the campus judicial process wasn’t designed to be an open forum, where an impartial judge or jury hears and decides a case before the public. Instead, campus hearings are closed. Federal privacy rules that protect students mean colleges typically can’t disclose, confirm, or correct the details of a case or its outcome.

Those rules governed what happened last month when a reporter asked Grinnell College to comment on a critical account of three sexual-assault cases that arose three years ago at the college. Because of the privacy laws, campus officials knew they could not discuss the cases with the news media. So Grinnell took the unusual step of publicly asking the federal Office for Civil Rights to review the cases to determine whether the college had done anything wrong.

While three female students had accused male classmates of sexual assault, according to an ensuing article in The Huffington Post, Grinnell found only one of the men responsible for sexual misconduct. In one of the other two cases, the college found the accused perpetrator responsible for “psychological trauma,” and in the third case the college found the student responsible for “disorderly conduct.” The article contained damning details: that the assailants were placed on disciplinary probation but not expelled, that the accusers had to keep taking classes with them, and that the students found responsible were directed only to write short apology letters.

The Office for Civil Rights hasn’t said whether it will agree to Grinnell’s request, which some victims’ advocates dismissed as a public-relations move to deflect responsibility. Raynard S. Kington, president of the college, says it had to ask because, in the face of criticism, it couldn’t defend itself. “We’re concerned this distorted coverage could actually discourage students from coming forth and getting the help they need,” he says, calling portions of the article inaccurate. “These cases are being played out in the court of public opinion with incomplete information.”

However a college decides a case, more is in play than fairness and safety. An institution often must pay its own price, both financially and reputationally. No campus wants to be branded a “rape haven” for letting perpetrators off the hook. But with the stepped-up duties colleges now have regarding sexual assault, if more students are found responsible, a particular campus can seem like a place where assault is a significant problem.

The University of Colorado at Boulder recently settled a lawsuit, for $15,000, from a former student who said the university violated Title IX when it suspended him for nonconsensual sexual intercourse. (The student said the sex was consensual.) He agreed not to return to the campus, and the university said it would not provide information to other institutions about why he left. The latter is standard procedure for Boulder, a spokesman there says. After someone serves a suspension, the university does not note the infraction on his transcript. But some view the case as Boulder’s attempt to have it both ways: satisfying the accuser by finding the young man responsible, and mitigating the fallout by settling his lawsuit.

“Schools are reacting precipitately just to get out of the way of what they view as an oncoming train, which is the outcry and outrage that will come with not treating a victim fairly,” says Andrew Miltenberg, a lawyer who represents students who’ve been accused of rape.

With doubts swirling about campuses’ ability to handle these cases, will administrators concede that it should not be their job to prosecute rape?

Probably not any time soon. “Who is going to want to look like they are not aggressively pursuing these complaints?” asks Mr. Coffina.

More likely, some say, is that one or more federal court decisions will help clarify colleges’ role. Perhaps the courts will take up due process, the standard of consent, or the burden of proof that the Office for Civil Rights has directed colleges to use: a “preponderance of the evidence” (or “more likely than not”), which is lower than the criminal standard of “beyond a reasonable doubt.” A ruling could determine whether the office’s guidelines — and the way campuses follow them — are legally sound.

This past winter, the University of Pennsylvania followed the lead of other elite institutions by totally revamping how it handles sexual misconduct. It professionalized the process, officials said, naming a special investigator with experience prosecuting sex crimes, and establishing a specially trained decision-making panel. But a third of the university’s law faculty isn’t impressed.

The new rules vest too much power in an individual investigator and undermine due process for the accused, 16 professors wrote in an open letter in February. “Our point is there is too high a risk of wrongful adjudication,” says David Rudovsky, a senior fellow at Penn’s law school and one of the authors of the letter.

Part of the problem, it says, is how the federal government has directed colleges to respond to sexual assault. The 2011 Dear Colleague letter from the civil-rights office told campuses to take “immediate and effective steps to end sexual harassment and sexual violence,” spelling out some of them. A detailed Q&A last year provided more specific instructions. Neither the Dear Colleague letter nor the Q&A followed the usual process of federal rule-making, which includes soliciting public comment. Only a new set of regulations interpreting the Violence Against Women Act, which includes provisions for campus sexual assault, followed the typical federal rule-making process.

“OCR has issued several guidance letters,” the Penn law professors wrote, “whose legal status is questionable.”

Some lawmakers find it incredible that rape cases are landing in campus systems instead of in courts. A roundtable discussion last summer led by Sen. Claire McCaskill, a Missouri Democrat, considered that issue, and the proposed new Senate bill requires campuses to coordinate with local law-enforcement agencies. Virginia legislators unanimously passed a bill in February requiring colleges to report to the police all sexual-misconduct cases they consider felonies. And recent incidents involving unconscious victims at Vanderbilt and Stanford Universities were quickly referred to the police.

Some college leaders are quietly talking about other alternatives. Could they pool their resources and create regional tribunals — staffed by legal experts — to handle rape allegations? Campuses could still fulfill their role of ensuring that students who come forward don’t have to be in classes or dorms with those they’ve accused. And the outside panels could process the cases more consistently, sidestep many of colleges’ built-in shortcomings, and coordinate with law-enforcement agencies.

In a journal article last year, a longtime researcher of sexual violence, Mary P. Koss, argues for a “restorative justice” approach to resolving some students’ cases. While federal guidelines discourage colleges from using mediation, restorative justice is distinct — a voluntary process in which the offending party accepts that harm has been done. The resolution often involves rehabilitation, says Ms. Koss, a psychologist in the University of Arizona’s public-health school who wrote the article with two campus officials. Restorative justice serves victims and Title IX better than an adversarial model, she says, with expelled students landing at other colleges.

Meanwhile, as of last week, 105 federal investigations of campus sexual assault were pending. According to an analysis by Mr. Kallem, of Duke, it took the Office for Civil Rights an average of more than two years per case to resolve 15 over the last five years. And Congress may not approve the Obama administration’s request for money to hire 200 more staff members for the office.

“Can they go on adding more to their docket?” wonders Robb Jones, senior vice president and general counsel for claims management at United Educators, an insurance and risk-management group. “Given the years they are taking to decide investigations, is the current enforcement process going to grind to a halt under its own weight?”

Two members of the U.S. Commission on Civil Rights have urged Congress to take into account “OCR’s pattern of overreaching” in deciding whether to increase the office’s budget. A letter they wrote in February says: “OCR has pushed past the limits of its legal authority in addressing sexual assault and harassment on college and university campuses.”

In a couple of years, the Obama administration will leave town, and probably with it the political appointees who have kept campus sexual assault at the top of the national agenda. “Successive administrations may not have the same priorities as this one,” says Mr. Jones. “The enforcement pendulum may swing back.”

Perhaps over time, with more experience, colleges will refine their approach and settle into a process that all students — and the advocacy groups behind them — consider fair. Maybe new federal legislation will bring some clarity. Or a decisive court ruling will place responsibility for dealing with sexual assault squarely in colleges’ domain — or remove it altogether. But one thing is clear: Pressure is running too high to sustain the status quo.