WITCH HUNTS AS POLICY: How a little-known education office has forced far-reaching changes to campus sex assault investigations.
But what some faculty, administrators and judges call an unyielding and one-sided approach by the government has provoked a backlash. Two weeks ago, a judge in San Diego rebuked the UC campus there for trampling the rights of an accused student.
“Some schools see OCR as a bully with enforcement powers,” said Terry W. Hartle, senior vice president at the American Council on Education, the lobby group for higher education.
“Universities are desperately trying to do the right thing, but these cases can be really difficult to resolve fairly. Often, you have two conflicting stories, no evidence, no witnesses, and it’s all combined with substance abuse.”
University officials, many of whom will speak about the subject only on condition of anonymity, complain of heavy-handed pressure from Washington and a growing bureaucracy.
Janet Napolitano, president of the University of California and a former prosecutor and secretary of Homeland Security, warned in an article in the Yale Law & Policy Review published online this month that “a cottage industry is being created” on campuses dedicated to handling tasks that fall outside the expertise of colleges and universities.
“Rather than pushing institutions to become surrogates for the criminal justice system,” she said, policymakers should ask if “more work should be done to improve that system’s handling and prosecution of sexual assault cases.”
Under pressure from the Office for Civil Rights, campuses are rushing to set up a parallel legal system to investigate and rule upon murky encounters that often involve inebriated students. They must decide within 60 days whether it is “more likely than not” that an alleged perpetrator was guilty. And they make those decisions without many of the legal protections associated with a criminal trial.
The new procedures vary from school to school, but according to Harvard Law School professor Janet Halley and other critics, many do not allow the accused to know details of accusations against them, to question accusers, or to have lawyers participate in hearings. Many also allow only limited appeals of rulings by a campus administrator or outside expert.
If the next President is a Republican with an instinct for the jugular, he or she could double down on these rules and really put the hurt on what is, after all, a central piece of the opposition’s infrastructure. . . .