THE BLOG
08/25/2014 09:54 pm ET Updated Oct 25, 2014

Why Colleges and Universities Should Be Worried About Campus Sexual Assault Investigations

A perfect storm descended on colleges and universities this summer. Starting with the White House Task Force's report on campus sexual assaults ("Not Alone: The First Report of the White House Task Force to Protect Students from Sexual Assault"), the storm gathered momentum from the identification of some 76 colleges and universities as being under investigation for how they handle sexual assaults and intensity increased with proposed federal legislation in the House and Senate that includes monetary fines. State legislatures may soon follow the example of California by proposing their own legislation. Lawsuits against the colleges filed by victims abound and lawsuits filed by accused students are on the rise as well.

The storm emanates from statistics showing that one in twenty college female students report being sexually assaulted. The investigations undertaken by the US Department of Education focus on whether the schools violated Title IX in their responses to sexual assault complaints by creating a hostile environment for learning. Colleges also are being sued for violating the Clery Act for improper reporting of sexual assault complaints.

The proposed federal legislation ("Campus Accountability and Safety Act") that imposes fines of up to 1 percent of a college's operating budget is sponsored by an unusually bipartisan coalition of 15 co-sponsors, including Kirstin Gillibrand (D-N.Y.), Claire McCaskill (D-MO), Dean Heller (R-NV), Richard Blumenthal (D-CT), Chuck Grassley (R-IA), Kelly Ayotte (R-NH), Mark Warner (D-VA), Marco Rubio (R-FL), Mark Begich (D-AK), Roy Blunt (R-MO), Barbara Boxer (D-CA), Lindsey Graham (R-SC), Lisa Murkowski (R-AK), Jack Reed (D-RI) and Sheldon Whitehouse (D-RI). The fine structure as explained by Senator Gillibrand seeks to "flip the incentives that currently reward [the colleges and universities] keeping sexual assault in the shadows."

The bill also requires minimum training standards for college and university staff involved in sexual assault investigations and disciplinary proceedings.

Other federal legislation ("Survivor Outreach and Support Campus Act) proposed the same day by Sen. Barbara Boxer (D-CA) and Rep. Susan Davis (D-CA) requires the designation of advocates for victims who act independently and report to someone outside the college's sexual assault response system. In their statements about the bill, both Boxer and Davis implicitly referenced a lack of public confidence in the impartiality of the colleges.

"Victims of a sexual assault need to know someone is there for them, especially the learning institute they have entrusted their future to," Rep. Davis said.

"Survivors of sexual assault deserve an advocate who will fight for them every step of the way," Sen. Boxer said.

California state legislation passed by the state Senate in May focuses on the definition of consent used by colleges. It would require all schools receiving public funds to use an "affirmative consent standard."

The stakes are high all around. Students found guilty by their schools of sexual assault are also suing their schools. Historically, lawsuits against schools for disciplinary proceedings sanctions have met with little success. But the stigma of being branded a sexual predator and the harsh accompanying sanctions have upped the incentive to challenging those precedents. Students facing expulsion, suspension or "gap" years amounting to years of delay in their graduation (with the accompanying lost economic opportunities) may see little to lose in suing their schools in light of the increasing awareness that school-based proceedings are being conducted by faculty and students with little or no training in either judicial process or sexual assault investigations.

But it's the loss of public confidence that poses the gravest risk to the colleges and universities. Parents and students already consider factors as diverse as financial aid to vegan food plans in choosing between colleges. Campus safety is a no-brainer. No student wants to attend a college known to be lenient on sexual predators. No parent wants their child to attend a school in a dangerous environment. Even a storied institution like Dartmouth saw a 14 percent drop in admission after a stormy year of bad publicity ranging from hazing stories to sexual assault scandals. With campus sexual assaults stories appearing daily in publications ranging from The Huffington Post, New York Times, US News & World Report, to Bustle, the issue is likely to be high on the minds of prospective students, their parents and alums.

How should the schools respond? Like all crises, the campus sexual assault crisis offers opportunities for action and improvement.

Prevention can be improved through growing awareness of the problem's scope. Behavioral changes such as alcohol and drug safety programs aid in prevention. Bystander intervention training programs -- among the actions recommended by the White House Task Force report -- also aid in prevention.

Investigations must become uniformly effective and just. Effective investigation requires not only sensitivity to victims and encouragement of reporting but also knowing what to do with those allegations. Better training and incorporation of professional investigators with sexual assault investigation experience is essential, but an investigator is only as good as the training they receive and the experience they rely upon. If colleges cannot practically utilize outside independent investigators possessing sexual assault investigation experience for every allegation, then they must at least have their staffs trained by individuals with former specialized sexual assault investigation experience.

Traditionally, colleges and universities have resisted developing a college "court system." Most disciplinary codes specifically claim exemption from rules of evidence and disclaim being "legal proceedings." This is an understandable position, given their educational (not prosecutorial) mission. But honoring their educational mission also requires designing systems that work and inspire confidence in the students depending upon their schools to safeguard their physical safety, legal rights and professional futures. The storm of criticism, investigations and lawsuits arising from the campus sexual assault crisis suggests that this is a critical opportunity for colleges and universities to self-examine the weaknesses in the existing systems of prevention and investigation of sexual assaults. It is up to the college administrators, students, parents and alums to make sure this opportunity is not wasted.