By Nick Anderson
June 27, 2014
Congress is exploring proposals to combat sex assault at colleges, months after taking action to overhaul how the military responds to sexual violence.
“This is an issue that has for far too long been swept under the rug,” Sen. Tom Harkin (D-Iowa), chairman of the Health, Education, Labor and Pensions Committee, said Thursday at a hearing on campus sex assault.
Ideas include requiring colleges to survey students about sex assaults and other safety issues, giving the government more options to penalize schools that mishandle assault reports and simplifying the jumble of laws, regulations and federal guidance that colleges must follow.
Sen. Claire McCaskill (D-Mo.) said she worries that many victims are “herded” into making decisions about their cases — crucially, whether to pursue relief through the criminal justice system or an internal university inquiry — without clear information from school officials.
“These victims, there’s no question in my mind, are being discouraged from reporting what has happened to them to the police,” McCaskill said in an interview this week after she hosted a forum on campus sex assault. She said she is consulting with Sen. Lamar Alexander (R-Tenn.), among others, to develop bipartisan legislation.
Last year, Congress was preoccupied with sex assault in the military. That led to enactment of legislation making it a crime to retaliate against victims who report assaults and requiring dishonorable discharge or dismissal of those convicted of sexual assault or rape, among other measures. In March, the Senate approved further changes to the way the military handles sex assault cases. That bill has not yet cleared Congress.
Now, lawmakers are focused squarely on colleges. And the Obama administration has created a White House task force on campus sex assault and released a list of dozens of colleges under federal investigation for their handling of sexual violence cases.
Higher-education leaders have pledged to do more to prevent sex assault. But they also criticize how the U.S. Education Department’s Office for Civil Rights (OCR) enforces Title IX, an anti-discrimination law that is central to the debate.
“While institutions must resolve sexual assault cases in 60 days, it is not uncommon for OCR to take years to resolve a single complaint against an institution — a result that leaves both complainants and institutions in limbo too long,” Molly Corbett Broad, president of the American Council on Education, wrote the committee.
Ohio State University has been under investigation for possible Title IX violations related to sexual violence cases for four years, according to the federal government, and the University of Virginia has been under investigation for nearly three. In all, 64 institutions are now under investigation.
McCaskill said Congress may need to consider expanding the OCR. She also wants the law to require colleges to use a “preponderance of the evidence” standard in judging sexual misconduct cases. That standard — meaning that one must find it more likely than not that misconduct occurred to hold an accused responsible — is lower than thresholds such as “clear and convincing” or “beyond a reasonable doubt.”
Critics call the preponderance standard unfair to accused students. Robert Shibley, senior vice president of the Foundation for Individual Rights in Education, said there should be a higher burden of proof to put “a black mark on someone’s record.”
On Thursday, Harkin asked Catherine E. Lhamon, assistant education secretary for civil rights, whether the government needs more options to penalize colleges that violate Title IX. Currently, the only possible sanction is to cut off federal funds. The government has never taken that step with a college.
Lhamon’s answer took Harkin aback.
“It’s not my view that we lack a tool that is meaningful for us,” Lhamon said.
“That’s amazing to me,” Harkin said.
Lhamon said the threat of a funding cutoff helps the government secure meaningful actions, citing a recent settlement of an investigation of Tufts University.