The University of Virginia is presently the focus of major controversy over fraternities and what many see as a widespread campus rape culture. This latest political crisis was triggered by an article in Rolling Stone It reports the experience of a young woman who was the victim of a gang rape at a fraternity party. University president Teresa Sullivan responded to the article by suspending all fraternity and sorority activities for the remainder of the year and calling an emergency meeting of the Board of Governors which was held yesterday.
Shocked, tearful and at times defensive, members of the board that oversees the University of Virginia insisted that they would combat the problem of sexual assault on campus after a magazine article reported a gang rape at a campus fraternity and allegations that the university was more concerned about its reputation than a history of sexual assault embedded in its hard-drinking social life.
The unusual emergency meeting, which included students, a representative of the fraternity system and the Charlottesville police chief, did not end with specific policy prescriptions for the university. A legal firm was assigned to the university to help come up with new guidelines at a time when Congress and the Obama administration have put intensifying pressure on schools that fail to report and punish assaults.
The meeting had the requite expressions of shocked outrage and very serious concerned. However, there were the predictable voices of "responsible" caution over taking precipitous action.
One board member, Stephen P. Long, warned that fraternities were being unfairly maligned and seemed disturbed by the news media attention on the school, where television cameras have landed for not the first time. “What this board is doing and will continue to do is look at facts,” Mr. Long said. “What we cannot do is act precipitously. We cannot respond solely to emotion. Concerning fraternities, he said, “we must not throw any organization under the bus.”
UVA is just the latest instance of the focus by women's advocates to shine a light on the issues of sexual assault on college campuses. They are of course not the only places where rape occurs, but they have become a particular point of advocacy and media attention. Colleges are a situation that places large numbers of young men and women in a highly concentrated environment. Colleges have changed many of their admission and housing policies over the past generation in response to the broader changes in gender expectations. There was a time when many high schools and colleges were strictly segregated by gender. UVA did not admit women students until the 1970s. When I started college in 1961 at a coeducational state university all undergraduate women (girls as they were then called) were required to live in segregated dorms where their hours and activities were highly controlled. Undergraduate men were not. While those restrictions did not prevent rape, they focused on placing the responsibility for the problem on women.
There has been a concerted effort to get the federal government to use the provisions of title IX to require colleges to institute more rigorous efforts to combat the problem of sexual assault on their campuses. While victims always have the option of taking their complaint to the criminal justice system, there is a notion that college disciplinary proceedings could offer an alternative mechanism that would be more responsive to victims needs and sensibilities that the likely process of criminal investigation and prosecution or the the lack thereof. A sizable number of colleges are under investigation by the federal Dept. of Education as a result of complaints about their handling of sexual assault accusations. Most colleges are presently struggling to devise and implement procedures that comply with these new standards while simultaneously trying to deal with the concerns of parents, alumni and donors and protect the college's reputation.
This is turning out to be a very rocky road. The general thrust of the DOE guidelines has been to treat the college investigatory process as an administrative rather than criminal proceeding. As such they are generally inclined to use different standards of evidence and may or may not allow students to be represented by attorneys. If attorneys are allowed to be present, they typically aren't allowed to speak or cross examine witnesses. The most severe penalty that they can impose on a student who they are convinced has committed sexual assault is either expulsion or suspension. Unlike a court of law they cannot impose imprisonment or monetary damages. Victim advocates are highly critical of the infrequent rate at which suspension is imposed.
There is now a growing movement to assert the rights to due process of male students who have been accused under these proceedings. Here are a couple of examples along those lines.
Mr. Miltenberg insists his decision to sue a number of universities on behalf of male students who have been suspended or expelled following sexual assault accusations is not inconsistent with any of the above. He’s already filed four lawsuits—against Vassar College, Columbia University, University of Massachusetts Amherst and Drew University—will file several more before month’s end, and is consulting on 20 or so appeals at the college disciplinary level. In each, he is suing the schools for violations of the Title IX gender-parity law of 1972, contractual claims, unfair trade practices, as well as a number of tort claims.
Every single one of the men he’s representing, Mr. Miltenberg argues, has suffered egregious due process violations in closed-door college hearings. (He also believes that his clients are innocent of the charges against them.) And that is how he has found himself in the decidedly impolitic position of not only defending those accused of rape, but also suing on their behalf.
Impolitic, perhaps, but he’s also in good company. Twenty-eight current and retired Harvard Law School professors recently sent a letter to the university asking it to abandon its new sexual misconduct policy, arguing, as Mr. Miltenberg has more generally, that the new rules violate the due process rights of the accused. “This is an issue of political correctness run amok,” Alan Dershowitz, an emeritus professor, told a Boston Globe reporter.
This August, Columbia University released a new policy for handling “gender-based” misconduct among students. Since April, universities around the country have been rewriting their guidelines after a White House task force urged them to do more to fight sexual assault. I was curious to know what a lawyer outside the university system would make of one of these codes. So I sent the document to Robin Steinberg, a public defender and a feminist.
A few hours later, Steinberg wrote back in alarm. She had read the document with colleagues at the Bronx legal-aid center she runs. They were horrified, she said—not because Columbia still hadn’t sufficiently protected survivors of assault, as some critics charge, but because its procedures revealed a cavalier disregard for the civil rights of people accused of rape, assault, and other gender-based crimes. “We are never sending our boys to college,” she wrote.
Columbia’s safeguards for the accused are better than most. For instance, it allows both accuser and accused to have a lawyer at a hearing, and, if asked, will locate free counsel. By contrast, Harvard, which issued a new code in July, holds investigations but not hearings and does not offer to obtain independent legal assistance. But Steinberg, like most people, hadn’t realized how far the rules governing sexual conduct on campus have strayed from any commonsense understanding of justice.
University officials I’ve talked to are upset about the policies they’re being asked to write, though none would say so on the record. But Brett Sokolow, who runs a law practice that advises both universities and students, said administrators tell him they feel overwhelmed by the difficulty of handling sexual-misconduct cases and the expectation that they’ll pass Solomonic judgments about complicated sexual encounters to which there may have been no witnesses and which often involve heavy drinking. OCR requires schools to train investigators as well as the panelists who hear cases, but they are rarely trained well. “We run four-day trainings for campus investigators,” says Sokolow. “When these folks come out of it, if they’re novices, they’re not ready.”
This seems likely to get even messier than it already is. The advocates for due process rights for the accused pretty much want to turn the proceedings into something similar to a criminal trial. Civil lawsuits against colleges are their most immediate tool. There will no doubt be pressure on the DOE to revise its guidelines. One of the many problems in this situation is that the college administrative staff conducting this process are seldom people with legal training. As administrators their tendency is to look for resolutions to problems that create a minimum of organizational disruption. This is unlikely to bring much satisfaction to either victims or accused.
Colleges must deal with problem behavior on the part of their students, whether that is academic cheating, destruction of property or sexual assault. One of the reasons that sexual assault is becoming a more pressing problem for them is that the rape culture is slowly shifting. Women are becoming more willing to fight back. Surveys indicate that one if five women are victims of sexual assault in their lifetimes. Yet, about 80% of those rapes go unreported. The willingness to report is what seems to be changing. A situation of one student making a serious accusation against another student is not something that can easily be put on hold. Directing the accusing person to the criminal justice system does not absolve them of all responsibility. The two students involved in the matter may be in regular contact with each other in residential or class situations. Waiting for the criminal justice to dispose of the issue is not likely to be a satisfactory solution to all of the administrative problems. The questions that are being sorted through is just how much of the problem can colleges realistically deal with.
Victim advocates would like to see an alternative to a criminal justice system that they view as fundamentally biased by a rape culture. However, they want a college based alternative to take significant action against men that it determines to have committed sexual assault. Only then will the responsibility for dealing with the problem become more fairly balanced. Can that ever realistically be achieved outside the criminal justice system? I am not sure if it can.