The Costs and Benefits of New Federal Rules on Campus Sexual Violence
Does the Increased Bureaucracy Justify the Protection Afforded Students?
New federal rules issued on Monday aim to make campuses safer by requiring colleges to train students and employees on preventing sexual assault, dating violence, domestic violence, and stalking. The rules also include new categories for identifying hate crimes (gender identity and national origin) and specify that students can choose advisers, including lawyers, to accompany them in campus disciplinary proceedings. The rules will take effect in July 2015. Until then, colleges are expected to make a "good-faith effort" to comply with the rules.
"These regulatory changes provide new tools to improve campus safety," Arne Duncan, the secretary of education, told reporters last Friday. The U.S. Department of Education published the rules in Monday’s Federal Register. They interpret the Violence Against Women Act signed last year by President Obama and amending the campus-crime law known as the Clery Act. The final regulations come as colleges, under pressure from activists and government officials, are grappling with their legal responsibility to investigate and respond to students’ report of sexual violence. The Education Department is now investigating more than 80 colleges for possible violations of gender-equity law involving alleged sexual misconduct, and federal and state lawmakers have introduced legislation to improve colleges’ response to the issue.
The problem of sexual violence on campus is real. Several cases have occurred on my campus alone the last few years. The impact on students can be devastating and leave lifetime scars. Something has to be done to reverse the trend of students getting drunk and/or slipped a roofie after which the female student is sexually assaulted, unable to fight back, and, in some cases, do not remember what happened to them. Laws are needed to protect women on campus. Students will be students and these occurrences will keep on coming because many are away from home for the first time; have little self-control; and/or are influenced by peer pressure to drink too much.
The question is not whether the new rules and regulations are needed. The question is whether the potential benefits of having these new rules outweigh the costs to administer the new policies on college campuses, and whether they will stem the tide of campus assaults. The following requirements will now be imposed on colleges.
- Colleges are required to provide training to faculty and staff members as well as students. The training must clearly define terms such as "consent" and outline campus policies on sexual misconduct.
- The goal is to improve transparency on how institutions handle students’ reports, said Lisa Maatz, vice president for government relations at the American Association of University Women. The regulations, she said, "make it really clear that each school has to talk about each step of the disciplinary proceedings." That’s important for students who report assaults as well as the accused, she said.
- In addition to collecting a wider range of campus-crime statistics, colleges must publicly report the number of sexual assaults that the campus police and other law-enforcement officials have determined to be "unfounded." Previously, such incidents were excluded from campus-crime statistics.
One important provision of the new rules is that students can now have “advisers” in campus hearings. The provision allows both alleged victims and accused perpetrators to choose a lawyer, family member, campus official, or other advocate to appear with them throughout disciplinary proceedings.
The interests of students in these cases, as well as the interests of colleges, are different, said Laura L. Dunn, a self-identified survivor of sexual assault and advocate for victims who also served as a negotiator on the department’s rule-making committee. "The school does have a dog in the fight—they’re worried about liability on either side," she said. "So it really is important for there to be independent advisers."
While a student can choose his or her own adviser, the college can limit that person’s participation in campus proceedings. That was a compromise after the rule-making panel turned briefly contentious, as negotiators representing colleges argued against the presence of advisers, who they said would alter the process. Dana Scaduto, general counsel at Dickinson College and a former president of the National Association of College and University Attorneys, called allowing advisers "the single most problematic provision" in the rules, not least because some students could afford lawyers, and others could not. I agree. This creates an element of unfairness and the lack of a level playing field for all students regardless of financial means that must be counted as a cost (and benefit) of the new rules.
In a move that disappointed some advocates of victims’ rights, the regulations remain vague on what standard of evidence colleges should use in deciding sexual-assault cases. The Education Department has issued guidance that colleges should use the "preponderance of the evidence" standard, or more likely than not, rather than the stricter "beyond a reasonable doubt" criteria. But the new regulations do not specify a burden of proof.
The rules also do not define consent, as some advocates had hoped. Affirmative consent—often described as "yes means yes" rather than "no means no"—is now the legal definition on campuses in California, and many other colleges have recently adopted it.
Reaction to the new rules and regulations have been mixed. There are those who favor any and all protection for victims of sexual assault on college campuses regardless of the costs inherent in developing the necessary systems to gather and report such incidents. Others raise several red flags about the new regulations including the new offices and officials being designated by campuses to comply with the rules thereby reducing campus funds available for programs that may, in the long run, better control for the problem. I believe that all students should have a mandatory freshman orientation class – not a one-credit throw-away – that deals with the issue on a broader scale than to just going over the regulations and reporting requirements. The motivation behind sexual assault must be dealt with honestly, openly, and in a way that promotes discourse on this essential component of providing a safe and secure college experience.
I’m talking about ethics. From my perspective all too many young people come into college with a lack of ethical values. They learn to pursue their own self-interests and care very little about how their actions affect others. Moreover, respect is not a word in their vocabulary. This is the basis for sexual assault on campuses; a failure to respect the right of all students to have a safe and secure college experience.
On my college campus little of any substance is or will be done because university administrators either don’t recognize the need for ethics education at the entry-level point and/or don’t want to seem preachy to college kids and/or have the misconception that college kids know all about right and wrong. A healthy sexual assault program on college campuses has to include a three-unit course taught in the first semester of college that creates the kind of campus environment and tone at the top set by the administration that makes it clear sexual assault will not be tolerated and offenders will, after the requisite due process, be treated severely to include suspensions, being expelled from college, and letters of reprimand in the official record of the student’s activities on campus.
Unfortunately, the problem of sexual assault on college campuses is just another example of a society-wide problem today. All too often in society today the “leaders” choose the easy way out and are afraid to discipline wrongdoers else they find themselves embattled in a lawsuit brought by the offender, a procedure that creates further abuse for the victim.
Do we need sexual assault rules and regulations on college campuses? Do we need a new layer of bureaucracy to handle such matters? Yes, we do. We need to have a due process for investigation of alleged sexual assault to protect the abused. But, let’s not be naïve about it. No matter how hard we try, we can’t legislate morality. No law will change the underlying cause of sexual abuse, which is an ethical one borne out of a lack of respect for others and ignorance of their rights in a fair and just society.
Blog posted by Dr. Steven Mintz, aka Ethics Sage, on October 22, 2014. Professor Mintz teaches in the Orfalea College of Business at Cal Poly San Luis Obispo. He also blogs at www.workplaceethicsadvice.com.