Wednesday, July 29, 2015

Safe Campus Act would give students accused of sexual violence lots of protections: nine reasons I like it

The Safe Campus Act of 2015 sponsored by Republican Reps. Matt Salmon of Arizona and Pete Sessions and Kay Granger of Texas is a significant bill because it provides rights for both the accuser and the accused. The latter's interests typically are omitted from legislative efforts. The new bill would create a veritable sea change in the current legal landscape when it comes to handling allegations of sexual violence in the academy. Finally, at long last, persons accused of sexual violence are to be given protections. Here's FIRE's take on it--which is pretty much the last word on the subject. And here's a great illustration of how it works.

All of us should urge our representatives to get behind this effort, to sign onto it: And we should all write to our local newspapers to urge our representatives to sign on to it. It should not take much to sell this to the general public--who can be against fairness?

Here are nine things I like about the new bill:

1.  The school's disciplinary action hinges on whether or not the accuser allows the school to report the alleged violation to law enforcement. Getting rapists off the street helps other potential victims of rape as well as men wrongly accused of rape since every rape diminishes the perceived integrity of every man accused of rape. Here's what the bill says: "If an individual provides a notification to the institution [that she does not want the matter investigated by law enforcement], the institution may not initiate or otherwise carry out any institutional disciplinary proceeding with respect to the allegation, including imposing interim measures . . . , but only if the individual includes in the notification a statement that the individual understands the effect under this subparagraph of providing the notification."

2.  Police investigations come first. The school's internal disciplinary process is halted while law enforcement investigates. "During the period in which a law enforcement agency is investigating a covered allegation reported by an institution under sub-section (a), the institution may not initiate or otherwise carry out any institutional disciplinary proceeding with respect to the allegation . . .." The school is permitted to impose interim sanctions, but they are of limited duration without a hearing.

3.  The schools must hold formal hearings with adequate notice at least two weeks before the hearing. This requirement precludes disciplining a student based solely on an investigation.

4.  No hiding evidence. "The institution shall ensure that all parties to the proceeding have access to all material evidence, including both inculpatory and exculpatory evidence, not later than one week prior to the start of any formal hearing or similar adjudicatory proceeding. Such evidence may include but is not limited to complainant statements, third-party witness statements, electronically stored information, written communications, social media posts, and demonstrative evidence."

5.  Lawyers are allowed. This is a big one. "The institution shall permit each party to the proceeding to be represented, at the sole expense of the party, by an attorney or other advocate for the duration of the proceeding, including during the investigation of the allegation and other preliminary stages prior to a formal hearing or similar adjudicatory proceeding, and shall permit the attorney or other advocate to ask questions in the proceeding, file relevant papers, examine evidence, and examine witnesses . . . ." A caveat: "The institution shall permit each party to the proceeding to safely confront witnesses, including the complainant, in an appropriate manner, including by submitting written questions to be asked by the person serving as the adjudicator in any formal hearing or similar adjudicatory proceeding . . . ."

6.  No conflicts of interest. "The institution shall ensure that the proceeding is carried out free from conflicts of interest by ensuring that there is no commingling of administrative or adjudicative roles."

7.  Schools to set their own standard of proof. This is a big one because it rolls back the infamous "Dear Colleague" letter's insistence that schools apply a "preponderance of the evidence" standard. "An institution of higher education may establish and apply such standard of proof as it considers appropriate for purposes of any adjudication carried out as part of an institutional disciplinary proceeding under this section."

8.  Students who sue the school and win get attorney's fees. A big one because in most civil litigation in the U.S., prevailing parties don't get their attorney's fees. "In any civil action under this subsection, the court may award the prevailing party (other than the institution of higher education) compensatory damages, reasonable court costs, attorney fees, including expert fees, and any other relief in equity or law that the court deems appropriate."

9.  Violations of the new law become a breach of contract. This is a big one that, I suspect, few commentators will recognize. When wrongly expelled students sue their colleges, they can't sue for breach of contract unless the particular right was included in a contract with the school, such as a student handbook. If the school is a private institution, the student is without due process protections, so a breach of contract claim is often all he's got. This new bill explicitly says the words of the new law become part of such a contract.  "Each institution of higher education which is subject to this part shall publish annually in the institution’s Student Handbook (or equivalent publication) a statement of the procedures applicable to institutional disciplinary proceedings under this section, and shall publish such statement in the form of a contract between the institution and its students and student organizations."