VAWA And Double Jeopardy: Latest Version Still Troubling
April 16, 201
The Foundation for Individual Rights in Education (FIRE) has taken no position on reauthorizing the Violence Against Women Act, except to express deep concern about provisions in the bill that can be seen threats to due process on campuses.
In her recent Atlantic Monthly piece criticizing VAWA, civil libertarian Wendy Kaminer took note of FIRE’s concerns:
As Senate Republicans resist renewing the 1994 Violence Against Women Act (VAWA), raising questions about immigration fraud and Indian tribal courts, and Democrats indignantly declare their support of it, civil libertarians should take a hard look at some of the Act’s deceptively innocuous provisions. Section 304, which governs the treatment of sexual violence charges on college and university campuses, requires that cases involving allegations of violence or stalking provide for “prompt and equitable investigation and resolution.”
What’s worrisome about this language? Will Creeley of the Foundation for Individual Rights in Education (FIRE) points out that “prompt and equitable” is a term of art under federal anti-discrimination law. It’s construed by the Department of Education’s Office for Civil Rights to require a low standard of proof (“preponderance of the evidence”) in sexual misconduct cases.
Creeley, writing on The Moral Liberal, explains why the “prompt and equitable” language is troubling and details another problem with the revised text of the bill. Creeley looks at Section 304 of the latest version of VAWA. This section would amend the Higher Education Act of 1965 to require that all schools that receive federal funding adopt standard procedures for dealing with sexual assault and other crimes.
Creeley finds that the current version of the bill remains deficient with is still wanting with regard to due process:
Unfortunately, by replacing the explicit “preponderance of the evidence” requirement with a mandate that university procedures for sexual assault cases must “provide a prompt and equitable investigation and resolution,” the bill’s authors have reintroduced the problem.
To be clear, FIRE obviously does want campus disciplinary procedures to be prompt and equitable. Justice, no matter the venue, should always be prompt and equitable; indeed, it’s hard to imagine a just result that isn’t prompt and equitable.
However, this “prompt and equitable” standard is essentially a de facto incorporation of the preponderance standard. That’s because, as Kaminer notes, the Department of Education’s Office for Civil Rights (OCR) troublingly interpreted “prompt and equitable” to require the preponderance standard in its April 4, 2011, “Dear Colleague” letter.
You can read the letter on Creeley’s post. Here is his conclusion:
FIRE has been very concerned about a similar “double jeopardy” provision in OCR’s April 4 letter, and this language in VAWA essentially codifies it.
Again, FIRE takes no position on any other section of VAWA. But like Kaminer, we’re concerned about the draft bill’s attempt to codify the due process threats presented by OCR’s mandates.