In the Face of Mounting Criticism, CASA Bill Deserves Separate Consideration and Debate
March 10, 2016
In 2011 the Department of Education’s Office for Civil Rights (OCR) issued a Dear Colleague Letter on sexual assault. Even though the Letter imposed significant new requirements on colleges, it did not undergo prior review-and-comment, in apparent violation of the Administrative Procedure Act.
Last week, Sen. James Lankford, chairman of the Committee on Homeland Security and Governmental Affairs, sent an advisory to the Dept. of Education charging the “OCR’s silence on important due process considerations, coupled with the requirement of a lower standard of proof, indisputably tips the playing field against the accused, making the disciplinary process anything but ‘equitable.’”[i]
Americans view the presumption of innocence as a central pillar of our legal system. So Sen. Lankford’s statement represents a stunning indictment of the OCR policy. This brings into question whether campus disciplinary committees are properly equipped to investigate, adjudicate, and sanction campus rape cases. Think about it — in what universe are rapists expelled, not imprisoned, for committing a heinous crime?
The Campus Accountability and Safety Act (CASA – S. 590) builds upon and expands the quasi-judicial approach that was spelled out in the OCR 2011 Dear Colleague Letter. But the existing system of campus sex tribunals was created by an unlawfully issued OCR directive – a scheme that at most can only impose slap-on-the-wrist punishment. Does it make sense to pass a bill that would serve to legitimize a fundamentally flawed approach?
For these reasons, multiple organizations have issued statements opposing the CASA bill and/or calling for campus sex cases to be referred to criminal justice authorities:[ii]
- Sixteen higher education associations
- Nine civil rights and other organizations
- Six media outlets
- Five legal groups
- Five victim advocacy groups
Jim Crow Justice
This week, SAVE sent to a letter to the Senate Health, Education, Labor, and Pensions Committee.[i] The letter highlights the numerous sitting senators who have called for greater criminal justice involvement and better due process protections in these cases. The letter also documents how the OCR’s polices have contributed to the rise of vigilante justice. Sadly, we have reached the point in our country that existing campus policies bear a disturbing resemblance to the injustices faced by Black men charged with rape during the Jim Crow era.
The SAVE letter calls on the HELP Committee to:
- Take steps to rein in the Office for Civil Rights.
- Restore fairness in the handling of campus sex cases.
- Not propose any new legislation that would serve to consolidate, expand, or otherwise legitimize the existing campus-based system.
Instead, CASA should be debated as a separate, stand-alone bill. After all, our students deserve better than second-class justice.