January 28, 2014
Last Wednesday, President Obama announced the creation of the White House Task Force to Protect Students from Sexual Assault. The announcement, part of a renewed focus on rape and sexual assault from the Obama administration, was included in a new report (PDF) from the White House Council on Women and Girls and the Office of the Vice President. As Libby Sander reports in the Chronicle of Higher Education, the new task force—the membership of which includes senior administration officials, such as Attorney General Eric Holder—will deliver a set of recommendations to the President within 90 days.
Per the report, the task force will aim to:
- Provide educational institutions with best practices for preventing and responding to rape and sexual assault.
- Build on the federal government’s enforcement efforts to ensure that educational institutions comply fully with their legal obligations.
- Improve transparency of the government’s enforcement activities.
- Increase the public’s awareness of an institution’s track record in addressing rape and sexual assault.
- Enhance coordination among federal agencies to hold schools accountable if they do not confront sexual violence on their campuses.
FIRE welcomes the administration’s emphasis on greater transparency. But civil liberties advocates with a focus on and expertise in due process issues must be included in the process. They have not been thus far. Indeed, the President’s announcement offers civil liberties advocates like FIRE a new opportunity to demand that the twin moral and legal imperatives of responding to sexual assault and protecting student and faculty rights are not needlessly placed in tension, as they too often have been by the Department of Education’s Office for Civil Rights.
FIRE reminds the task force that securing just outcomes in campus judicial procedures requires affording meaningful due process protections to all those involved. The right to due process is not an obstacle to justice; rather, it is the guarantee that justice will be served. Without due process, campus proceedings will arrive at arbitrary, unsupportable conclusions that lack the integrity all parties deserve.
The task force would benefit by commissioning a new, thorough investigation of the scope of the problem of sexual assault on campus. Impartial investigative federal research would help define the parameters of the problem facing policymakers and would aid students, administrators, law enforcement, and the public.
The current system fails students. Almost daily, headlines remind us that the status quo on campus is unacceptable. Accordingly, the task force should explore removing the authority to investigate and adjudicate sexual assault from ill-prepared administrators facing serious conflicts of interest. While colleges and universities may effectively take steps to aid students—for example, by providing counseling and directing students to relevant resources—they have proven largely incapable of appropriately addressing allegations of sexual assault. As an alternative, the task force should find ways to empower campus and local law enforcement with the resources and training necessary to effectively and appropriately address allegations of such serious criminal misconduct. The safety of our nation’s college students demands the focused attention of well-trained law enforcement professionals, not campus administrators following risk management practices.
Finally, FIRE is monitoring the negotiated rulemaking process that has begun for the reauthorization of the Violence Against Women Act of 2013. We are disappointed that there are no civil liberties advocates with expertise in due process and freedom of expression included, and we believe that the rulemakers have already strayed from the bounds of the notice provided. We will have more on this process as it continues here on The Torch.