Last week, a bipartisan group of senators reintroduced a campus sexual assault bill which, as I wrote last year, has some serious problems.
The Campus Accountability and Safety Act, which picked up two additional sponsors from last year's version, purports to combat sexual violence. In reality, the bill fosters a campus climate where accused students are guilty until proven innocent.
The first bone of contention: The continued insistence by bill sponsors to call complainants "victims" before any evidence is compiled. At least they use the appropriate term "accused" (instead of "rapist") for those on the other side, but the phrasing still shows bias toward a "guilty until proven innocent" mentality that has currently resulted in some 60 accused students suing their universities for unfair treatment.
This year's version of the bill at least pays lip service to the notion of due process for what is actually a felony being adjudicated by campus administrators. The bill now includes the term "due process" three times, a major increase from last year's bill, which included the term exactly zero times.
On page 31 of the bill's 51 pages, due process gets its moment to flicker under a dark bridge.
"The institution shall provide both the accuser and the accused student with written notice of the institution's decision to proceed with an institutional disciplinary process regarding an allegation of sexual misconduct within 24 hours of such decision, and sufficiently in advance of a disciplinary hearing to provide both the victim and the accused student with the opportunity to meaningfully exercise the due process rights afforded to them under institutional policy," the bill says. (Emphasis added).
This mere acknowledgement that such a thing as due process exists is a small improvement over last year, when the co-sponsors who actually answered my questions about the bill (Sens. Marco Rubio, R-Fla.; Chuck Grassley, R-Iowa; and Kelly Ayotte, R-N.H.) punted on the question.
Rubio's spokesman said: "This bill does not address this issue."
Grassley's spokeswoman said: "[T]his bill does not contain mandates about how colleges should conduct their internal disciplinary proceedings."
Ayotte's spokeswoman didn't even answer the due process question.
So at least it was mentioned this year. The inclusion, however, is woefully insufficient, but I suspect this was the best some senators could get, given fellow sponsor Sen. Kirsten Gillibrand's complete disregard for the concept when accusing her own constituent of being a "rapist," even though he was cleared by his university and not pursued by police.
The New York Democrat never answered my questions last year about the bill.
This year's bill mentions due process a second time, also on page 31:
"The rights and due process protections available to the victim and the accused student, including those described in section 485(f)(8)(B)(iv) and any other rights or due process protections that the victim or the accused student may have under the institution's policies," the bill says.
The "rights" included in that string of letters and numbers — which is from the Higher Education Act of 1965 with amendments from the Violence Against Women Act — include a supposed "fair and impartial investigation" by minimally trained campus administrators, notification of hearing procedures and outcomes and the ability to have "others" present at their disciplinary hearing. Notice the term "others" and not "attorney" or "legal representation."
The bill also provides students with any due process rights granted to them by their university — not the constitution. So in reality, this new bill does absolutely nothing to protect due process rights for students accused of a felony on campus, and instead punts that responsibility to the universities, which have so far completely ignored those rights while bowing to political pressure.
Nowhere in the bill is the term "cross-examination," one of the central tenets of due process and something neither the accuser or the accused is entitled to at a campus hearing.
Another troubling aspect included in the section about "support services" for the accuser is a requirement for schools to provide legal counseling. This would be a perfectly reasonable resource for schools to provide — if they were also provided to the accused student. This hints at further bias against students accused.
Remember, these students are being accused of felonies. This isn't a disciplinary hearing for plagiarism, which can get a student expelled but not imprisoned. Documents and "evidence" included these proceedings can and will be turned over to prosecutors, should that be the next step. Universities, under political pressure, often ignore or explain away evidence provided by accused students and then find them guilty based solely on an accusation.
So while the new bill mentions due process three times more than it did last year, it still provides no real acknowledgement that such basic constitutional protections are valued at our nation's colleges and universities.