First, Do No Harm

More than a dozen student affairs associations, nonprofit organizations and victims' advocate groups are releasing an open letter today urging state legislators to reconsider pending bills in several states that the letter says would interfere with colleges' efforts to prevent campus sexual assault.

The letter, written by NASPA: Student Affairs Administrators in Higher Education, was sent to lawmakers in all 50 states; in several states, legislatures are considering bills that would require college officials to refer all reports of sexual violence to law enforcement or that would give accused students judicial rights, such as allowing a lawyer to fully participate on their behalf, that are not available to accusers.

“While we applaud these legislatures’ desire to assist institutions of higher education in improving their responses to sexual and other forms of gender-based violence that victimize their students, both groups of bills would actually have the opposite effect from the one intended and make it more difficult for campuses to end this violence and its devastating effects on victims’ lives,” the letter reads.

The mandatory-referring bills could force colleges and universities to be out of compliance with federal law, NASPA stated.

A provision in the Violence Against Women Reauthorization Act of 2013 amendments to the Clery Act, the law that mandates that colleges track and publicly report instances of certain crimes each year, states that institutions that receive federal funds must inform victims of sexual assault that they can decline to notify law enforcement about being assaulted. Title IX of the Educational Amendments of 1972 also allows certain employees, such as counselors and advocates, to not report incidents of sexual assault.

As recently as last month, the Virginia Senate was considering a bill that would require public colleges to report an alleged campus sexual assault to police within 24 hours. University employees who fail to report an assault to police would have been charged with a misdemeanor. After hearing from survivors and victims' advocates, state legislators are now retooling the plan to promote what one senator calls “enhanced encouragement” instead. Mandatory reporting bills are also being considered in New Jersey and Rhode Island.

Kevin Kruger, president of NASPA, said that turning all sexual assault cases over to law enforcement would make it difficult for victims, without involving the police, to demand that colleges take action about complaints under Title IX. These proposed laws could also discourage some students from reporting the assaults to campus officials, he said.

“Legislation which mandates the referral of every sexual assault to law enforcement will have a chilling effect on many victims’ willingness to come forward,” Kruger said. “While campus-based processes offer room for improvement, requiring all cases to move to law enforcement has the potential to revictimize the victim by removing control over how their own case should proceed.”

The letter also warns against legislation that would give students and student organizations accused of misconduct -- but not the accusers -- the right to be represented by lawyers or the right to a judicial review of student disciplinary proceedings. Such legislation, the letter states, would “inject inequality into campus disciplinary proceedings.”

Inspired by fears that the federal government’s pressure on colleges to better investigate and adjudicate cases of campus sexual assault is leading administrators to trample on the due process rights of accused students, North Dakota and South Carolina are both considering legislation that would allow attorneys to fully participate in campus proceedings on behalf of accused students. North Carolina already passed a similar bill last year.

Earlier this month, the Foundation for Individual Rights in Education called the North Dakota legislation "sorely needed," saying that the bill would provide students with "a powerful new tool to ensure that their rights won’t be trampled on, nor their educations unjustly curtailed."

The NASPA letter argues, however, that "this approach ignores the balance set by the U.S. Supreme Court regarding the scope of accused students’ due process rights" under the Constitution.

“Dozens of cases on accused students’ administrative due process rights confirm schools’ rights to discipline, even expel, students for a wide range of misconduct, including smoking and drinking beer on one end and participating in a failed conspiracy to shoot several students and school officials on the other," the letter reads.

Kruger said NASPA and many of its member institutions are concerned about a “mounting trend of state legislators’ involvement and intrusion into campus-based judicial systems.”

The letter is signed by representatives of NASPA, the American Association of University Women, the Association of Student Conduct Administrators, Casa de Esperanza: the National Latin@ Network, the Clery Center for Security on Campus, the Domestic Violence Legal Empowerment and Appeals Project, the Education Law Association, the International Association of Law Enforcement Administrators, Jewish Women International, Know Your IX, the National Alliance to End Sexual Violence, the National Coalition of Anti-Violence Programs, National Council of Jewish Women, the National Domestic Violence Hotline, the National Organization of Sisters of Color Ending Sexual Assault, the Victim Rights Law Center and VTV Family Outreach Foundation.

The signees included both student affairs associations and also advocacy groups that have regularly called on colleges to do a better job preventing and punishing violence against women on campus.

“We hope states will take a pause and reflect on the extent of how some of the legislation is in conflict of both federal policy and Office for Civil Rights guidelines,” Kruger said. “We assume that this all well-intentioned, but sometimes legislators may not understand the nuance of how campuses must deal with this.”