House Republicans proposed changes to the Higher Education Act last week that would prevent parents, students, and taxpayers from understanding how much sexual violence occurs at colleges — a move that could have a devastating impact on victims of sexual assault, advocates say.
“You have millions of women, from college students to movie stars to hotel maids, coming forward and sharing their stories of assault and abuse and millions of ordinary Americans are standing with them and now the Republicans want to sneak through, in a 542-page bill, protections for rapists and perpetrators,” said Michele Landis Dauber, a professor of law and an outspoken critic of universities’ mishandling of campus sexual assault investigations.
“Title IX [the federal civil rights law that prevents sex and gender discrimination in education] is designed to protect children from sexual predators in schools and colleges and the fact that the Republican party wants to leave our kids exposed to sexual predators shows how out of touch with the values of ordinary Americans they really are,” Landis Dauber told ThinkProgress.
The provisions would allow colleges to halt investigations on sexual assault while police conduct a criminal inquiry and dilute the effectiveness of campus climate surveys that help students understand how dangerous their campus is.
The bill also includes a provision that would make it impossible for parents, students, and taxpayers to compare a university’s data on campus rape to other campuses. The bill reads:
… the Secretary may not regulate or impose conditions on the contents of an institution’s survey under this section, except as may be necessary to ensure that the institution meets the confidentiality requirements … may not use the results of the surveys to make comparisons between institutions of higher education.
Landis Dauber said this restriction on climate surveys, which conflicts with a Senate bill with bipartisan support. The Senate bill, CASA, the Campus Safety and Accountability Act, was introduced again in April 2017 and has not moved since then. Landis Dauber said the House GOP changes would be devastating to the cause of transparency on campus rape in universities.
“These are tax-supported institutions. Even if they are nominally private like Stanford, Stanford receives billions in dollars from federal subsidies and taxpayers absolutely have the right to know if our students are safe at school. How is our money being spent? This a simple transparency measure,” Landis Dauber said. “If I said your daughter has a 43 percent chance of a nonfatal stabbing at Harvard, you would be like, ‘Oh my god, 43 percent of women have nonfatal stab wounds at Harvard. I’m not sending my daughter to Harvard,’ but because it’s rape, schools have normalized it as the cost of doing business.”
She added that the provisions hobble efforts to understand which campus prevention measures work.
“If we can’t have a uniform survey where students and parents can make useful comparisons among schools, that’s going to disable us from knowing what is working in terms of prevention and what isn’t,” Landis Dauber said. “If one school is showing you their trajectory is improving and rates of sexual violence are going down and rates of reporting are going up, then everyone will want to know what Yale is doing to cause that.”
Landus Dauber was particularly outspoken about the case of Brock Turner, a Stanford student athlete who was found guilty in 2016 of three felony sex crimes. She led a campaign to recall Judge Aaron Persky, who gave Turner the light sentence of six months in jail. Landis Dauber could have enough signatures to put a recall on the ballot in the June election. An appeals court recently denied Persky’s request to block people from collecting the signatures.
The Stanford campus community has been assessing whether the university is spreading misleading campus sexual assault and harassment data. In 2015, Stanford University administration celebrated a 1.9 percent rate of sexual assault among undergraduate and graduate students in its campus emails, but the data averaged men and women together and used a narrow definition of sexual assault that is based on state criminal statutes, Mercury News reported. Landis Dauber told the Mercury News at the time, “My first reaction to the 1.9 percent number was that it’s not credible, it’s too low to be correct. I thought, ‘There must be some mistake.’ That’s probably lower than some convents.”
Alyssa Peterson, an organizer with Know Your IX, an organization that educates students on the nondiscrimination law, told Inside Higher Education that she is concerned about there being no language in the Republican proposal that mentions a penalty for colleges that delay campus rape investigations at the request of law enforcement. Peterson said it might give survivors a disincentive to go to police at all.
Landis Dauber said she was also concerned about the provision of the bill that deals with police action, since police are not always neutral entities in relation to universities. Landis Dauber provided the example of a 2012 case involving Florida State University students. Florida State student Erica Kinsman, who said she was raped by Florida State quarterback Jameis Winston, told the producers of the documentary The Hunting Ground that police officer Scott Angulo, a graduate of and fundraiser for her school, discouraged her from moving forward when she gave Winston’s name as her assailant.
“This is a huge football town. You really should think long and hard if you want to press charges,” Kinsman said the officer told her.
In 2014, The New York Times reported on the inaction of Tallahassee police in great detail. After the accused identified Winston as her assailant once she saw him on campus, it took police two weeks to interview him and they didn’t get a DNA sample from Winston until a year later. A video of the alleged rape filmed by one of Winston’s friends had been deleted by the time the prosecutor got the case.
The GOP provisions would also codify into law portions of the interim guidance that Education Secretary Betsy DeVos introduced in September when she rolled back 2011 and 2014 Obama-era guidance on sexual assault. The bill would require giving accused students all material evidence one week before proceedings, requiring colleges to notify the accused in writing no later than two weeks before a formal hearing, letting the accused know about a hearing no later than two weeks before a hearing, and includes a description of “all relevant details” of the allegation, and lets schools choose which standard of proof to use.
Under the interim guidance DeVos introduced in September, colleges have the choice of two burden of proof standards when deciding whether someone committed sexual misconduct — a preponderance of the evidence standard, which means that it’s more likely than not that the accused is responsible for sexual assault, or a clear and convincing evidence standard. The clear and convincing standard means evidence must be presented that leads people to believe there is a high probability that the victim was sexually assaulted. Although the 2011 guidance clarified the use of the preponderance of the evidence standard, this standard was also used in the Bush administration and has been the standard for cases involving discrimination, experts on Title IX have said.