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The Campus Accountability and Safety Act Would Mildly Improve Campus Due Process
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.
Analysis
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.
Criticism:
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.
Published in General
Mandated, no -I want the universities to have the power, though. And mostly I just mean sex-segregated dorms and curfews. On alcohol, I have no strong view -we’re debating a new policy, which might include limited wet-areas. I am neither in favor nor opposed -I await the relevant committee’s report.
Part of that is teaching and expecting students to act like the residents of Belmont, who are not getting involved in drunken hookups every Friday night. Something university administrators are not in a position to do. Hell, as a faculty member, I feel like I’m on thin ice just recommending against it (which I do) -all I need is some student to feel like I’m being sexist or something…
But you do have to start from the in-place laws; you are not about to get them all abrogated in one shot (generally, conservatives would be careful, wouldn’t we?) so you introduce a Senate Bill that acknowledges and is an improvement on the current laws, pass it, and let the Conference address the differences with the House Bill. Dr. Will just got a bit lazy.
And there goes anonymity. You shouldn’t need to tick a box to refuse to fill out the form.
And in order to provide this additional federal supervision of universities, more federal dollars will be spent on more government employees, which means more people corrupted by working for the government, and more dollars for Democrat campaigns.
And for what good? None at all that has been explained.
With Republicans like this, who needs Democrats?
I agree. This seems like one of the more positive elements in the CSA. That said, I’d like the bill that passes not to have a civil war reminiscent acronym; like “AQ”, “CSA” just creeps me out.
Sure. I don’t think one can really make the sort of reforms I’m suggesting as a Federal thing. The one thing the Feds could do is repeal the law making it mandatory for the States to have a drinking age of 21. Then we can start to experiment and get data.
The residents of Belmont have mostly been students. Students, similarly, are disproportionately Belmont residents. I’m under the impression that “university”, much like “the sixties” is a place where a lot more sex is implied than had.
Why on earth would ticking a box in the form remove your anonymity? You would need to remove you anonymity to refuse to tick an online box, but I’m not sure why anyone would feel the need to do that. University students fill in many forms and ticking a box saying that you don’t want to fill a form in is about as inobtrusive a request as could possibly be made.
Which bit of I’m not sure which part of the bill you’re referring to. Could you be more specific? There is a funding section, but it’s in the hundreds of thousands; you’re talking about a hundred thousandth of one percent of the budget.
No, I don’t need to be more specific. There are reporting requirements to ensure that the universities have procedures in place. Those reports are going to be looked at. It takes people to do that. It takes people to make the decision, that yes/no, mr. university, you can/cannot hire outside contractors to run your surveys. Those people, whether it’s one $200,000 employee or a dozen of them, are going to contribute money to the hate machine through their union dues, and will likely provide additional support, legally and extra-legally.
If it’s just one hundred thousandth of one percent of the budget, that’s an easy call: Let’s respect the taxpayers and not fund it. To the government it may be peanuts; to the taxpayers it’s a burden and a drag on the economy.
I agree that reporting costs money. You referred, though, to extra federal dollars. So far as I’m aware, and I’ve read the bill a couple of times and read a reasonable amount of commentary, the CASA doesn’t supply extra federal dollars.
The money might end up coming from cuts in other university spending, states or local governments might increase spending, but federal dollars aren’t one of the options provided by the bill. In states where extra dollars are not found (which I suspect would be most states, because the cost of an automated survey is a rounding error), no additional union dues would be found, and indeed, a trivial reduction in union dues seems plausible.
You cannot be serious. It’s less than a tenth of a cent per American. No American struggles with that sort of a burden. Cumulatively, a lot of bills might add up to a burden, but you would need literally thousands off these bills before it added up to a bottle of coke. Congress and the President could be passing them all day, every day, funding it by a universal poll tax and it still wouldn’t be a noticeable difference even for people at the bottom five percent of American incomes.
That makes no coherent sense. There is extra work to do. If states fund the extra, they will be in control, and that is not the way things will be allowed work. Just because you can’t find a budget for it now doesn’t mean there is not going to be one. There will be, whether explicit or not.
There will be costs associated with these new regulatory burdens, and they will have to be paid. Also, the earth is going to continue its orbit around the sun. It would be foolish to assume otherwise just because it doesn’t say so in the text of the bill.
Of course I’m serious. My view of the proper working of government is also 180 degrees opposed to yours. I may not be able to defeat your way in the end, but it’s a struggle worth pursuing until it’s time to exit to the grave.
I’m not disagreeing with a normative, philosophical, claim here, just with your factual claim that this represents a burden on tax payers.
If you want to say that the government shouldn’t fund studies about how to make government spending more efficient (which is what the spending increase in the bill is about), then, fine. I think that, philosophically and jurisprudentially, you will run into difficulties if you insist that the government spending time in making decisions is Unconstitional or even merely intrinsically bad, but it’s a position you can take. Maybe you feel that these studies in particular are bad; if so, then fair enough. I’m not going to disagree, but a strong opposition to things this small has to be driven by categorical condemnations, not by financial concerns.
I don’t think you understand how federal funding for universities works. The DofEd gives most of the money to students in the form of TRIO grants, Pell grants, and the like. It also gives money for some specified federal programs (improving Native American institutions, for instance). The government as a whole, but particularly the DoD, gives money to universities to conduct research. In order to receive this money, universities have to abide by a raft of conditions. These conditions are not particularly tailored to the size of the funds and, indeed, the Constitution would not permit them to be. It’s just not the case that adding strings to the funding increases the funding.
I agree that there will be costs, and that they will have to be paid (unless a particular institution chooses to opt out, a la Grove City or Hillsdale, but few would). That isn’t the same thing as assuming that they will be paid by the Federal government. It is incredibly common for costs of Federal compliance to vary wildly from one year to the next without an accompanying increase or decrease in funding; the two aren’t particularly connected.
You view the issue of “burden” a lot differently than I do.
I wasn’t talking about compliance costs, though there is that, too. I was talking about administrative costs, as I thought I had made clear.
You consider the loss of a tenth of a cent a year a burden? Do you have an estimate for how much you’ve spent over the last few years that approximates the level of detail at which you might care about it (I’m not asking the amounts, just if you know them)?
Well, fine, but the same is true. Additional strings on federal education funding do not involve additional federal education funding.
I suppose it was too much to hope this post had made into the hands of either Schow or Will.
http://www.washingtonexaminer.com/marco-rubio-now-says-he-will-stop-assault-on-college-due-process-rights/article/2581004
Highlights.
They always do involve additional funding. If they’re too savvy to put it in the budget this time, they will do it next time after the fuss has died down, perhaps pleading that it’s unconstitutional to pass a bill and not fund it (using the logic they used at the time of Ted Cruz’s heroic effort to bring some these things under control).
You, of course, have a first amendment right to believe whatever you want about it, and you are under no obligation to take past behavior into account.
Like I said, you view the issue of “burden” a lot differently than I do. You seem to have a problem getting out of the beltway rut of how to think about these things, and I don’t think it’s within my ability to change that. All I can point out is that yours is not the only way people have thought about these things.