05/28/2014 09:02 am ET Updated Jul 28, 2014

Why Are Universities So Horrible at Responding to Sexual Violence?

David Emmerman

The question of the title is one that is causing heartache and soul-searching, some long overdue reflection. Universities' failures have been manifold. They assume authority and responsibility then fail to deliver the remedies they promise. Institutions that are supposed to act as storehouses of humanistic values seem to abandon those values and look with indifference on the destruction of the lives of their own students. Claims of procedural fairness become caricatures of false equivalence in which predators are equated with victims with the same kind of "balance" that has become typical of cable television. The same institutions that will impose complicated systems of rules to ensure a welcoming environment for broad categories of students will then turn around and seemingly ignore the trauma suffered by a specific individual. And as every commentator feels compelled to point out, we are talking about some of the finest universities in the world here.

Why are universities so horrible at responding to claims of sexual violence? I think there are a number of factors, presented here in no particular order:

First, there is the desire not to ruin the future of a young man who might turn out to be a future Senator or CEO or alumni donor. This is particularly a concern of the most elite institutions, a classist assumption that creates a self-reinforcing sense that the laws that govern the lives of ordinary people do not apply here. It is a 19th century attitude that says that "college men" are the future leaders of the nation, and the closely related idea that a woman's psyche and her body can recover but a an's career is forever. As for the future of the young woman who might go on to become a Senator or CEO or alumni donor -- somehow the harm to that brilliant future does not seem to fully register. It is as though the fact that the majority of university students are women has not yet filtered into the institutional consciousness; when I read statements by administration officials in these cases I half expect the writers to start talking about "coeds."

Second, there is an extent to which we may be witnessing unanticipated consequence of reform. Universities gave up on "loco parentis" under pressure from free speech activists and students frustrated by strict social norms (listen to the old song "Dirty Water" by the Standells). Libertarian revolt against those kinds of restrictions spread to transform the understanding of the relationship between a university and its students. Ever since then universities have been struggling to figure out their role. Today's libertarian student object to attempts to regulate public campus expression by administrators. But those same supposedly authoritarian administrators are extremely squeamish about getting involved in the "private" matter of criminal assault. The personal, it seems, is not yet political on a university campus even as politics are taken very personally.

Third, these cases really can be very difficult. The failures I am describing here are a matter of perception; in at least some cases, it is probably the case that a fair evaluation of the available evidence did not provide the kind of basis for strong action that due process principles require. It may be the case that we are hearing the alleged victims' stories but that there is more to each particular case that the public does not see. Fair enough. But the problem is that this response begs the question: why are universities handling sexual assaults in the first place? Cases begin with a complaint or an accusation. If the content of that complaint rises to the level of a serious offense, why are the police and the local prosecutors not called in at once? If a student were suspected of murder, would that really be a matter for internal administrative proceedings? At Brown University, a student received a one-year suspension after having been found guilty of (among other things): "sexual misconduct that includes one or more of the following: penetration, violence physical force, or injury." That's not misconduct, that's a felony. Certainly the victim had the option of filing criminal charges, but that's not the question. The question is, what is Brown's Office of Student Life doing in the business of investigating, trying, and punishing felonies? The university is trying to say that a single office can both operate a system of criminal justice and at the same time be in charge of fostering a nurturing educational community. The message to female students, in particular, is that neither claim is to be trusted.

A fourth reason is that sometimes the stakes for the university are quite high: a star football player may be involved, if the student is wealthy there is the certainty of a lawsuit, there may be backlash from alumni, there is the danger of bad publicity. Title IX has teeth, but nothing that compares to an aroused and angry donor base. But this only points out the obvious and overwhelming conflict of interest involved. A university's institutional self-interest militate against effective handling of serious allegations of misconduct. Yet universities go to great lengths to discourage students who are victims of violence at the hands of fellow students from going to outside law enforcement authorities. From the first day, starting in orientation, students are told about their university's procedures and offices that are available to handle their concerns. This is not a simple matter of crime victims voluntarily choosing to submit their complaints to private arbitration, although that would be disturbing enough. But what goes on in these cases is that universities aggressively position themselves between victims and the legal system with assurances of protection and remedies that turn out to be hollow.

Fifth, there is the matter of personnel. All these factors set up a very complicated set of calculations, often performed in the first instance by security officers or low-level assistant deans who want to "take care of" the problem in order to make themselves appear effective. There is usually some sort of appeal process by which an initial decision is reviewed by a mid-level bureaucrat, then a senior bureaucrat... In other words, multiple layers of inefficacy are achieved by combining the worst aspects of a police department, a government bureaucracy, a corporation, and a self-conceived community. Every one of those institutional arrangements has good and bad points, but this issue seems to bring together the least functional, least humane aspects of all of them into one single horrible fail.

There may be no perfect solution, but there are some obvious improvements that could be undertaken. All colleges and universities should commit themselves to the following steps immediately:

1) Separate "student life" from the investigation and punishment of student misconduct. The office of student life (whatever it is called) needs to be the place a student who feels victimized can go for help and comfort, not the place to dive into an adversarial process. A student who alleges an assault needs to be guided toward resources, informed about options, offered help -- the same office and officials cannot do that and at the same time take charge of determining whether the alleged victim should be believed or whether the alleged perpetrator should be punished.

2) Separate "misconduct" from "serious crimes." If it is determined that there is a plausible claim that a felony has been committed inform law enforcement immediately. We are not talking about "bad behavior" here, we are talking about felonies punishable by lengthy prison terms. Universities are not equipped -- and have not been entrusted by society -- to determine the appropriate response to charges of this kind. And university students, even the very best and the very brightest, are not above the law. That might be a lesson our future MBAs, politicians, and lawyers should be taught earlier rather than later.

3) Make rules, announce them, then enforce them. H.L.A. Hart once said, "secret law is no law." Yes, these cases involve complicated issues and some cases are difficult. But each university has to make rules for itself, make sure they are well known, and enforce them. University officials are motivated by a desire to treat each case as unique and craft an outcome that suits the personalities of the individuals involved. That's exactly the way an office of student life should think, but when that same attitude is applied to crimes, "nuanced judgment" begins to look like lawlessness. It's not a problem unique to universities, of course: we all know about the notorious "affluenza" defense. But universities should not be in the business of encouraging lawless privilege. Here's a simple rule to start with: "if we conclude that you have committed an act that would constitute a violent felony, you will be expelled immediately." Now go from there.

4) Stop. Regroup. Rethink. The system is very badly broken. The well-being of students should be the first priority of universities, and in many ways universities go to great lengths -- sometimes controversial lengths -- to try to meet that obligation. But in the most basic possible situation, confronted by the possibility that there is a predator loose in the community, the current system fails again and again with terrible consequences. Fix it.