Baylor University Is a Perfect Example of Why Universities Shouldn't Police Rape
Violating the due process rights of accused students is a recipe for costly court battles down the road.
The recently released report detailing Baylor University's significant missteps in handling sexual assault cases is an impressive document. It argues persuasively that university administrators ignored the complaints of female students in order to protect Baylor's football team.
Baylor's Board of Regents has fired Head Football Coach Art Briles and demoted President Ken Starr. (He has now resigned his position as chancellor, and will remain a law professor.) They have implemented a plan to bring the university into full compliance with Title IX—the federal statutes that requires colleges to police sexual harassment and assault—"and have apologized to the Baylor community.
Note that the report is the Regents' summary of the results of an independent investigation conducted by law firm Pepper Hamilton. The lawyers did not prepare their own written report, which led my colleague Anthony Fisher to cry foul:
Keeping secret the highly relevant names and deeds of those responsible for this situation is bad enough. The fact that this investigation hasn't even yielded a written report works very much in favor of an institution which would like the public to believe that it has found religion (so to speak) and will never stray from the path again.
There's a whole lot of "transparency and accountability" not being pursued here.
Baylor's myriad failings are obvious, and it's not at all clear things will get noticeably better for victims of sexual assault at the university, although Title IX is infamous for encouraging universities to over-correct their rape adjudication procedures.
Slate's Nora Caplan-Bricker thinks the Baylor situation makes a great argument for getting universities even more involved in policing rape. In a provocative piece titled "The Crisis at Baylor Proves Colleges Should Handle Rape Cases, Not Leave Them to the Courts," she writes:
The courts eventually fulfilled their role—but if Baylor had listened to the first woman who spoke up, it may have been able to prevent a string of horrendous crimes.
This is one key reason why schools must be involved in adjudicating sex crimes. It can take years for a criminal case to wind its way through the courts. Schools can move faster to investigate serious charges and remove perpetrators who pose a demonstrated harm to other students. The criminal justice system is also poorly equipped to handle cases of rape and sexual assault: Because so many rapes have no third-party witness, its often difficult to provide evidence "beyond a reasonable doubt." An estimated three in every 100 rapes result in punishment through the criminal system, and many survivors of sexual violence decide they will face less trauma staying silent than seeking justice in court. Victims can receive a fairer hearing under the "preponderance of evidence" standard that schools employ—"though it's important to note, as legal experts have argued, that this lower evidentiary standard must be paired with careful investigation and legal representation in order to preserve the rights of both accuser and accused.
As slow and awful as the criminal justice system is—and there's specific evidence the Waco police screwed up here too—there's just no reason to expect poorly-trained university administrators to handle these things better, and lots of reasons to expect them to behave even worse. Baylor is an example of this very phenomenon: The school evidently cared more about its football team than about justice for victims. While it's possible Baylor can be reformed, why on earth would we hold up this model—the administrative investigation model—as superior to courts?
Anti-rape activists come across as impatient about the pace of justice, and it's easy to see why. The way the criminal justice system treats rape victims has improved dramatically over time, but it's still far from perfect. Yes, it's a difficult allegation to prove. Yes, it takes a lot of time. But shouldn't advocates work to improve that system—the one designed to administer justice to violent criminals—rather than investing time and effort in a system doomed to failure?
The more the activists—including those in the federal Office for Civil Rights, which ensures Title IX compliance—get their way, the more one-sided these campus rape investigations become. Note that this is by design: These people want it to be easier for colleges to punish accused students. They favor reducing the burden of proof, vesting investigatory powers in a sole (and often biased) administrator, and violating the rules of evidence precisely because these things are an impediment to their preferred outcome.
But this strategy has consequences of its own, and we are seeing them unfold before our very eyes. Accused students who were disciplined under standards of relaxed fairness are now suing the institutions that deprived them of due process, and they are winning.
This puts universities in a difficult position. On one hand, the federal government has threatened them with loss of funding for failing to comply with its strained interpretation of Title IX. On the other hand, lawsuits brought by wrongfully expelled students could cost the institutions a lot of money. But then again, lawsuits brought by students who say their Title IX right to a sexual-harassment-free environment was violated could also cost a lot of money. Still, complying with Title IX is itself quite costly: universities have to hire scores of coordinators and investigators that grow the administration and drain financial resources. For many colleges, sexual assault is a lose/lose/lose/lose issue.
Ad it's easy to see why: universities are not neutral institutions. They are not impartial. Their incentive is to protect their reputations, not merit out justice to trauma survivors. Trying to change the incentives has caused a number of other disasters, as we have seen.
It's possible to believe that universities should do more to accommodate students involved in sexual assault disputes—provide them different housing options, for instance—without accepting the wholesale replacement of the criminal justice system with a frequently inept and unfair jury-by-educrat procedure. University-led adjudication might make life easier for some rape victims in the short term, but the public should want these accusations carefully vetted by trained professionals in the courts—not because the women are lying, but because we want charges against actual rapists to stick. It's not enough to shuffle them around from campus to campus.
This is one of those cases where the easy thing isn't the right thing. The long-term public interest is better served by investing actual cops and courts with the power to police rape. If reforms are needed, those reforms should be targeted at the institution that can do the most good, and that institution isn't higher education.
