New College Crime Bill Deputizes Professors as Campus Security, Further Federalizes Campus Rape Investigations, and Adds Huge Fines for Schools That Don't Comply
The bipartisan Campus Accountability and Safety Act could cost colleges millions for failure to follow complex and costly new sexual-misconduct policies.
Under a bipartisan bill introduced in the U.S. Senate, a vast new array of higher-education employees—including all staff and faculty at some schools—would be designated as campus security authorities. The bill would also impose new penalties on colleges and universities for failure to comply with a range of staffing, surveying, training, and outreach demands, which could cost schools millions upon an initial violation.
The bill—sponsored by Sens. Richard Blumenthal (D-Connecticut), Joni Ernst (R-Iowa), Kirsten Gillibrand (D-New York), Chuck Grassley (R-Iowa), Dean Heller (R-Nevada), Claire McCaskill (D-Missouri), Marco Rubio (R-Florida), and Mark Warner (D-Virginia)—aims to amend the Higher Education Act of 1965, specifically the section colloquially known as the Clery Act. In a press release announcing their "Campus Accountability and Safety Act" (CASA), the senators invoke the Title IX, the federal rule prohibiting sex-discrimination in education, and a need to place "higher incentives on all universities … to empower student survivors and hold perpetrators accountable."
If CASA passes, expect to see campus crime numbers—of all sorts—skyrocket. One of the more bizarre provisions of the bill stipulates that "each individual at an institution of higher education who is designated as a higher education responsible employee… shall be considered a campus security authority."
Under federal code, higher education responsible employees are those required to report sexual misconduct to campus Title IX staff, even if the victim/confessor doesn't want to report the incident. But federal law is vague about who exactly falls into this category, leaving schools to develop their own more specific—and expansive—definitions. At some schools, all faculty and staff have been given responsible-employee status; many have expanded it to include all professors, or all people working with student athletics and extracurriculars.
What does it mean if each of these folks is designated as a "campus security authority?" It's unclear how much effect it would have on day-to-day campus policy. But for purposes of an institution's annual security report, this change would be a big deal. Under federal law, colleges and universities receiving any federal funding must report annually on the numbers of sexual violence and misconduct incidents reported to campus security authorities or local police each year, along with numbers on a range of other incidents, from murder to burglary to hate crimes. CASA would expand sex-offense reporting requirements to include non-identifying details about each incident (such as whether the victim reported the incident to a Title IX coordinator, whether they sought disciplinary action against the accused, the number of accused found guilty, and whether force or weapons were involved).
But more importantly, campus incidents are currently only included on annual security reports if they were reported to local police or campus security authorities—a category which has traditionally meant the campus police department. By drastically expanding the number of people defined as campus security authorities, we drastically expand the category of incidents included in annual security reports. Now we aren't just talking about incidents in which victims wanted to get authorities involved, or in which the offense was serious enough to warrant police attention regardless; any time a student confides in a professor, coach, drama director, resident adviser, etc., about something that could potentially be an offense—a verbally abusive romantic partner, a dorm-mate who shared an offensive web video, a classmate who made a disparaging remark about trans people, a sexual encounter fuzzily remembered—the listener would be obligated to report it to campus administrators for inclusion on the annual crime report.
It's a surefire way to discourage students from talking to faculty and staff about their personal lives at all and/or artificially ramp up federal stats on campus crime data.
The 2017 CASA is a redux of a stalled 2014-2015 bill, sponsored by several of its current Congressional champions. Then, as now, the bill was touted as a way to protect and ensure justice for victims of campus sexual assault. But the only discernible way it supposedly did so was by drastically increasing the federal government's control over campus sexual misconduct policies and the scope of their demands for universities in this regard, levying heavy fines on colleges that didn't comply.
Hans Bader, an attorney with the Competitive Enterprise Institute, noted that with an initial non-compliance penalty of up to 1 percent of an institution's operating budget, "that [initial offense] would be a whopping $42 million for Harvard alone, since its budget is $4.2 billion." Slate's Emily Yoffe pointed out at the time that the "legislation would, among other things, require all colleges provide a confidential adviser to guide victims through the entire process of bringing an accusation while no guidance or assistance is mandated for the accused."
Both criticisms hold true for the 2017 bill. While it does include a few nods to the rights of students accused of sexual misconduct—most notably, a requirement that both accusers and the accused have a right to call witnesses and provide evidence during campus disciplinary proceedings—it does not provide student defendants with the same access to a special coordinator as accusers have. Under CASA, schools must designate a number of sexual assault response coordinators (the precise number depends on school size) that have "protection under State law to provide privileged communication" and can hear complaints from victims, counsel them on options, and walk them through the campus reporting and disciplinary process, including brokering any conflicts between the student and Title IX officials or other campus administrators.
And under CASA 2.0, educational institutions could—at the Secretary of the Department of Education's discretion—still be charged up to one percent of their operating budgets for failing to comply with a host of requirements, from signing official memorandums of agreement with all local law-enforcement agencies to displaying information on school websites in a certain way, subjecting staff to fed-approved training modules, and documenting all info related to sexual-misconduct investigations in the correct manner, then submitting this data (in a very particular format) to the federal government. Even if schools manage to avoid fines, the cost of complying with all the new regulations will certainly rack up administrative costs (which are then passed on to students).
In addition, penalties for failing to meet specific sub-requirements of the bill can also be imposed, including a fine of $150,000 per month that an institution fails to submit an annual survey on student sexual-assault experiences. The opt-in student survey, to be developed by the Department of Education in conjunction with the Department of Justice, would ask questions regarding student experiences with rape and sexual misconduct and use the results of this (anonymous, non-scientific) poll to publish a national report on sexual violence by school and campus.
CASA would also mandate that any faculty or staff who might receive sexual-assault reports must undergo new training—to be developed by Education Secretary Betsy DeVos and Attorney General Jeff Sessions—on the definition of various sex offenses, the definition of consent and "the affect that drugs or alcohol may have on an individual's ability to consent," "the neurobiology of trauma," "cultural awareness," and "sexual assault dynamics."