News stories about campus sexual assault often get the question, "Why do schools handle these cases, anyway?"
Readers often wonder how universities got tasked with handling these convoluted cases in the first place. Where, they ask, do the police come in?
"It’s actually a very legitimate question because it’s been a big cultural change," said Peter Lake, a Stetson University College of Law professor with expertise in this area. "It wasn’t that long ago that that would have been a natural response, to push these things toward the police."
It’s pretty simple, Lake said: Schools handle these cases because they’re required to under penalty of law.
Okay, so why does the law require schools to deal with sex violence?
Short answer: Because it’s discrimination.
One violent act can contain many dimensions, Lake said. It can be morally repugnant. It can be criminal. It can be a violation of workplace rules.
And it can also be discrimination.
"That’s the thing that people have to wrap their heads around, that violence has often been used as a tool to perpetuate discrimination," Lake said.
Take violence against would-be black voters in the Reconstruction-era South. Or sexual harassment from a professor that effectively drives a student out of the classroom.
The law understands sexual harassment and assault as forms of sex discrimination. And because a federal law called Title IX prohibits sex discrimination at federally funded institutions, universities have to deal with it.
A student being harassed by her professor is likely going to have a harder time pursuing her education. So is a student who is reeling from a sexual assault by a classmate.
"Schools handle these issues because they’re supposed to make sure everyone has equal access to education," said Sage Carson, manager of the advocacy group Know Your IX.
Okay, but with a crime as serious as rape, what can a school really do?
It’s more accurate to think of the criminal and school systems as complementary paths rather than competing ones. A victim can go to one, both or neither.
"We’re dealing with the same act, but with a different perspective and goals," Lake said.
Law enforcement typically focuses on bringing a perpetrator to justice.
"But that doesn’t do anything to address the discriminatory impact," Lake said. "So campuses are focused on intervening and remediating that."
A university typically takes a more comprehensive approach, with resources for both the victim and the accused. It can, for instance, make sure students no longer have to share a dorm.
"A police officer can’t do that. Courts can’t do that," Carson said. "Schools can."
A school’s discipline process isn’t intended to replicate a criminal justice system. But the quick remedies it provides can be critical.
Still, why wouldn’t a victim of sexual violence go to the police?
The bar in the criminal courts is high, and finding guilt in these cases can be difficult given their complex nature.
The equation only gets more complicated with alcohol, blurred lines of consent and he-said, she-said testimonies.
Victims of sexual violence have reason to fear the criminal justice system, said Michelle Issadore, the senior associate executive director of ATIXA, the Association of Title IX Administrators.
She said the process has a long history of retraumatizing victims, who will likely face a barrage of questions from police, skeptical lawyers and juries along the way.
Furthermore, she said, some victims have no interest in seeing the accused face jail time. Instead, she said, they might just want their school to ensure they won’t cross paths again.
How does a university’s internal disciplinary process work?
First, let’s flash back about half a dozen years. Survivors of sexual violence often said too many universities were sweeping assault under the rug. Too few perpetrators were being held accountable.
The Obama administration issued a sweeping set of guidelines, starting in 2011, for how universities should address sexual assault. Survivors said that for the first time, it seemed like justice was possible.
Schools scrambled to get into compliance, altering their discipline processes, shifting budgets and adding resources. The Obama administration opened hundreds of investigations at universities where they suspected a potential mishandling of sexual violence cases, signaling consequences for failing to take the issue seriously.
Most schools ended up with quasi-judicial hearings and justice processes on campus. These are not a court of law, and can’t find anyone guilty. But they can find students "responsible" for misconduct so that schools can dole out sanctions and deal with the discrimination. These hearings can involve evidence, lawyers and cross-examination.
So where do we stand now?
Secretary of Education Betsy DeVos has said sexual assault is an issue she wants to get right. She has said that universities used to get away with too much.
She has also shown a keen interest in complaints from accused students and their parents, who, in growing numbers, are saying that they were denied due process.
As DeVos mulls her next steps, her office has released interim guidance for universities, stripping away the Obama rules, but leaving internal discipline systems mostly intact.
For now, universities and their students wait in limbo for what’s next.
Contact Claire McNeill at [email protected]