A recent AJC front-page story detailed the results of an in-depth investigation of how Georgia’s colleges and universities handle allegations of sexual assault. Here’s the takeaway, as summarized in the article:
A three-month AJC investigation into the secretive world of campus tribunals found that Georgia’s largest universities are pursuing cases that prosecutors won’t touch, offering some accountability for a serious category of student misconduct. But the newspaper also found that campus justice comes with steep trade-offs.
Procedures vary widely and are often poorly understood by both the accused and the accuser. Students, and sometimes their parents, expect the strict rules of a court of law, but instead encounter a looser system where cross-examining witnesses is sharply curtailed and the burden of proof is far lower.
Several students…claim the proceedings in place are deeply flawed and violated their rights to due process. While they haven’t gone to jail, an expulsion, or even suspension, can have dire and long-lasting consequences.
Sexual misconduct on campus is a very real problem, but so is the way colleges and universities, not just in Georgia, but across the nation, are handling it.
A little background is in order here. In 2011, the U.S. Department of Education’s Office of Civil Rights issued a letter indicating that the hostile environment standard heretofore applicable in sexual harassment cases would be extended to sexual misconduct on campus. Here’s the part of the long letter most relevant for our purposes:
In some cases, the conduct may constitute both sexual harassment under Title IX and criminal activity. Police investigations may be useful for fact-gathering; but because the standards for criminal investigations are different, police investigations or reports are not determinative of whether sexual harassment or violence violates Title IX. Conduct may constitute unlawful sexual harassment under Title IX even if the police do not have sufficient evidence of a criminal violation. In addition, a criminal investigation into allegations of sexual violence does not relieve the school of its duty under Title IX to resolve complaints promptly and equitably.
I’ve highlighted the words that lead colleges and universities into a legal thicket where they have to establish procedures for holding students accountable that don’t necessarily contain the sorts of safeguards for the rights of the accused with which we’re familiar from criminal law.
Many legal experts have found problems with the procedures established in response to this letter. For example, professors from two Ivy League law schools—Penn and Harvard—have raised questions about their university’s (undue) processes. Neither school is exactly a bastion of conservatism and the signatories include some stalwarts of the liberal legal establishment
The AJC article closes with the trade-off Georgia’s colleges and universities face:
Stephanos Bibas, a former federal prosecutor and professor of law and criminology at the University of Pennsylvania, said schools are trapped between competing forces, each of which brings great risk.
“Currently there are dozens of accused, almost all men, suing colleges, and colleges feel like they are whipsawed either way, and there are billions of federal dollars — grants, scholarship dollars — on the line. I think they feel they will get sued whichever way they go,” Bibas said.
They seem to be damned if they do and damned if they don’t.
I’ll leave to the legal experts to craft a fair policy to deal with sexual, but not quite criminal, misconduct on campus. I speak here as someone who has spent more than forty years on college campuses as a student and professor, and as the father of two children, one a college freshman and the other a high school junior. To my mind, there are two problems that the lawyers and student affairs professionals are trying to clean up. The first is the overwhelmingly pervasive presence of alcohol on campus. Everyone has access to it and all too many of them abuse it. Alcohol disinhibits young men and women who would otherwise shy away from the so-called hook-up culture. And it impairs their judgment when they find themselves at close quarters. While I’m dubious of the claim that one in five college women are victims of sexual assault, I have no doubt at all that almost all the cases that fall short of genuine criminality involve the inebriation of all the parties involved.
The second is the hook-up culture itself, based upon the understanding that sex is all about pleasure, not intimacy and procreation. Parents who try to inculcate in their children a traditional understanding of sexual morality are fighting against a strong cultural current, purveyed not just in television, movies, and music, but also in the law that has made marriage itself mostly about adult happiness and personal fulfillment.
But heaven help the educational leader that makes an argument like this. Late last year, Eckerd College President Donald Eastman III sent this message in an email to students:
“Virtue in the area of sexuality is its own reward, and has been held in high esteem in Western Culture for millennia because those who are virtuous are happier as well as healthier,” Eastman wrote to Eckerd’s 1,800 undergraduate students. “No one’s culture or character or understanding is improved by casual sex, and the physical and psychological risks to both genders are profound.”
Eastman, 69, suggested students drink less alcohol because “you know that these incidents are almost always preceded by consumption, often heavy consumption, of alcohol, often by everyone involved in them.”
While I can imagine that many parents were applauding him from the sidelines, the on-campus response was swift and mostly vitriolic.
Our problem is largely one of moral culture, that is to say, it’s an issue of character and character formation. Laws, formal rules, and procedures have a part to play in forming character, but they are blunt instruments, sadly unequal to the task of raising young men and women capable of forming and upholding the intimate bonds necessary for healthy families. When we make a mess of raising our children—as the evidence from campus life suggests we all too often have—we are driven back to these blunt instruments, whose limitations the AJC story makes all too clear.
As a professor, I feel bad for my students. As a parent, I fear for my children.