Ricochet is the best place on the internet to discuss the issues of the day, either through commenting on posts or writing your own for our active and dynamic community in a fully moderated environment. In addition, the Ricochet Audio Network offers over 50 original podcasts with new episodes released every day.
The Campus Accountability and Safety Act (CASA) is the subject of a spectacularly poorly researched article by George Will last week, and has been raised by a number of Ricochetti, so I thought it was worth working out what it does. The Act is not going to pass this year, but it’s worth understanding the legislation in contention (even if it doesn’t pass) and this will almost certainly be reintroduced next year and it might pass then. There are some criticisms of it that are simply incorrect. Thus, for instance, the use of the term “victim” in a crime survey context is not a violation of anyone’s civil rights and it’s not new (as anyone could tell if they looked at the law being amended). There are also aspects of Will’s argument that I think are clearly wrong, but on which I would appreciate correction. Happily, Ricochet seems like the place in which to educate myself.
CASA Contents: Higher Education Act
The CASA substantively amends three acts, as well as clarifying its lack of impact on a fourth and calling for a study to be written. Firstly, it amends the Higher Education Act, to require that universities make their protocols more transparent, formally allocate responsibilities with local law enforcement, and review their agreement every two years. If the police and university cannot agree, there is a substantial fine unless the institution submitted a form explaining the problem, showing that it had attempted in good faith to come to an agreement, and including the university’s final proposed agreement. In the 2014 version of the bill, the Secretary could then decide whether or not to impose crippling fines. In the 2015 version of the bill, the Secretary does not have that choice.
The Higher Education Act amendments also say that when someone makes a complaint, they should have a confidential adviser assigned to them who would have to inform them that the college disciplinary system was not a substitute for the criminal justice process. It requires that if someone reports a rape, and that report is the sole basis for believing that they engaged in underage drinking and the like, they should not be punished for the drinking. It requires that the protocols not have waivers or exemptions for athletes or for particular majors. Lastly, it requires that individuals get at least a minimum standard of due process, including notice of hearings, notification of their rights, notice of the details of the complaints, and notice of the outcome.
CASA Contents: Clery Act and VAWA
Secondly, it expands the Clery Act, which requires schools to publish crime statistics, to include a lot more detail about sex offenses and, more importantly, to force schools to put their crime statistics on the website. Never underestimate how lazy people are, and how much impact moving these things to more easily googleable places can have. The Clery Act amendments also increase the fines for Clery Act violations, require cooperation with law enforcement in the investigation of crimes involving students or university employees, and define more tightly who “responsible persons” are, who have to report crimes that they become aware of. The Violence Against Women Act amendments somewhat increases the still trivial budget for studies.
I should start by conceding that I’m very comfortable with partial solutions; if a bill makes life better for Americans without wholly solving a problem, I’m all for it. I recognize that this isn’t a universal view. As such, I’m happy with laws that demand that universities have better, more conservative, standards imposed on them, when the alternative is universities having worse, more liberal, standards imposed on them. Most Republican candidates would federalize a lot of higher ed spending, reducing the number of strings attached. Personally, I prefer to have some federal spending (for instance, on research relevant to the military) and some strings (for instance, that universities cooperate with military recruitment rather than discriminating against them, as they did in the Bush era). I … uh, may be getting a little off point here. Anyway, CASA’s due process requirements seem to me like a step in the right direction that would probably be undone if a Republican won the White House and we made a bigger step in the right direction.
The chief substantive exception appears to be over providing alleged rape victims with a confidential adviser. This seems like an obviously good idea to me. Students claiming rape are often in a somewhat emotional place, and are prone to making poor life choices that affect them, the person they’re accusing, and others; it’s best to have someone present they can talk to, who can say “I’m not sure if that’s a good idea,” and so on, who is not their immediate social support group, a group likely to consist of other dumb and emotional students. I’m not sure that it’s a good idea to have it mandated by law, but it doesn’t seem particularly harmful. It seems like a step in formalizing a process that is far too often ad hoc and deeply unfair.
The best thing about the law is the requirement that universities post their stats on their websites. That means that universities will have a stronger incentive than ever to extend due process to alleged rapists and to discourage allegations; each allegation and each conviction will not make the school less appealing to prospective students, and should check some of the abuses of campus activists. It’s also helpful to have more recent, clear, and easily accessible data available because that data gives the lie to the irresponsible claims made by feminists. If you remember Duke’s Group of 88, you will know the scale of the forces pressuring administrations to act unjustly; we need every tool available to pressure them the other way.
George Will’s article’s most important point appeared to be based entirely on a single National Review article that didn’t focus on the CASA. The article, by Stuart Taylor and KC Johnson, is a generally strong one on Obama’s executive order abuse in a campus rape context. Regrettably, it frames its wholly accurate assault on these abuses as a complaint about Republicans not doing enough to stop them, without it being wholly clear what they believe Republicans could do. They note that there have been relatively few committee hearings on the matter. They do not note, however, that Sen. Ted Cruz is the chairman of the relevant Judiciary subcommittee, while Sen. Rand Paul is one of the committeemen who did not turn up when Sen. Lamar Alexander held hearings for the Health, Education, Labor, and Pensions committee. If there was much in the way of ground to be won by speechifying about civil rights and the Constitution, they can generally be thought of as people who would choose to be present.
As an addendum to this, they claim that the CASA makes things worse. The first charge is the one I noted at the start: that the use of the term “victims” is wrongful:
With key Republicans along for the ride, McCaskill and Gillibrand produced a bill designed to advance the administration’s agenda. Its language presumes the guilt of all students accused of sexual assault by repeatedly calling accusers who have not yet substantiated their claims “victims,” without the critical qualifier “alleged.”
Taylor is not a lawyer and cannot be expected to know better. Stuart is a lawyer, and should be well aware that “victim” is a common term in statute and does not, in the Anglo-American tradition, require an “alleged” to prefix it. Thus, for instance, the “Crime Victims’ Rights” under 18 U.S. Code § 3771 apply before the conclusion of a trial; similarly, Reagan’s Victim and Witness Protection Act uses victim appropriately, and “victim” is in the Federal Rules of Evidence and the Federal Rules of Criminal Procedure. These are the basic texts of criminal law.
More importantly, the Clery Act amendments are amendments. When amending legislation, one of the clearest rules is that if the original act uses a particular term for a particular concept, that term should be retained. Any other term would be a gift to creative attorneys to earn their fees. The Clery Act uses the term “victim,” so the amendment should use the term victim. More importantly still, Johnson and Taylor make it sound as if this law is prejudicial to a trial for rape, but the Clery Act isn’t that kind of a law; it’s about campus reports to the Department of Education. None of this requires more than a brief scan of the statute and a basic knowledge of the law.
The NR article quotes a Rubio spokesman from 2014 telling the Washington Examiner’s Ashe Schow that the bill doesn’t address campus due process, as if this is a damning thing (there are many good bills that don’t address campus due process; the Personal Responsibility And Work Opportunity Reconciliation Act of 1996 is a personal favorite). While, as above, it seems obvious to me that bills that improve some areas of campus treatment of rapists without changing others yield a Pareto improvement, and that Pareto improvements are good, it turned out that this was a problem in 2014. Consequentially, it was fixed in the 2015 bill, which now provides for improvements in campus due process. The Taylor and Johnson article pretends that the quote is about the 2015 bill.
This causes Will to claim “by co-sponsoring S-590 [CASA], Rubio is helping the administration sacrifice a core constitutional value, due process, in order to advance progressives’ cultural aggression.” I don’t believe that there is a single clause of CASA that would reduce due process for a single student. If you think that Will’s claim that Rubio’s purpose in doing this is to advance progressive’s cultural aggression is, well, kind of aggressive, you should read the article. In it, Will prepares us for this purple language by accusing Rubio of “collaborating with the administration” and claiming that CASA is “indifferent to Constitutional values” and either deliberately or ignorantly weaving together discussion of Obama’s abuses and CASA.
Reading this, I felt somewhat the way that I did when reading Will’s defenses of McCain’s amnesty, and I recognize that I may thus have been uncharitable in seeing his piece as a collection of ignorant libels. It’s also likely that my aversion to a particular political figure making his arguments chiefly in the form of attempting to associate claims he disagrees with with liberals and using overheated rhetoric to condemn straw men has left me more sensitive to the Nazi allusions and such. So, please, Ricochet, defend George Will to me, or educate me about the CASA. I’m not fussy and am not able to tell what it is that I do not know; tell me I’m wrong about something (although if that something is entirely unrelated to the post I can’t promise to enter into much of a debate about it).
Edit: This article was edited to reflect KC Johnson’s just complaint that I wrongly attributed his article with Stuart Taylor to “Stuart and Taylor”. The author profoundly regrets the error.