California congresswoman Jackie Speier has proposed legislation that would add a mark to a student’s transcript in cases where the student was accused of sexual misconduct or rape. The goal of the bill is to prevent students from transferring to another school after a sexual assault without the other school knowing about it.
Speier argues that since schools already include notations about cheating on transcripts they certainly ought to include information about sexual assault. She told the Associated Press last month, “Sexual assault is a far more serious offense that deserves at least as much, if not greater, scrutiny.”
The problem, of course, is that schools are not designed to be courts and are not equipped to investigate these allegations. In fact, some of the cases in which students are expelled have been looked at by law enforcement but never result in charges because the evidence is deemed insufficient. From the AP:
Mike Reilly, who heads the American Association of Collegiate Registrars and Admissions Officers, said people often question why schools frequently handle sexual violence reports instead of law enforcement. Such cases often involve alcohol and hinge on whether an intoxicated person gave consent, and in many cases, law enforcement doesn’t find enough evidence to warrant charges, he said.
In addition to lower standards of evidence, schools are not set up to protect the rights of the accused. Justin Dillon, a lawyer who represents students accused of sexual misconduct says students are guilty until they prove themselves innocent:
“It is an uneven playing field from the start,” said Justin Dillon, a Washington-based lawyer who has defended dozens of students accused of sexual misconduct. “Regardless of what colleges want to say, the burden is always on the accused student to prove his innocence, not the other way around.”…
Dillon, who has defended many accused students, had one who sued George Mason University in Virginia following his December 2014 expulsion after a former girlfriend accused him of sexually assaulting her. A three-person Sexual Misconduct Board initially exonerated him, but the woman appealed and an administrator who appointed himself to hear the case ordered him expelled.
A federal judge in March ordered the student reinstated, citing testimony from the administrator that he had made up his mind to expel the student before even hearing his side of the story.
That certainly sounds like the definition of an unfair trial, i.e. a judge who makes up his mind before hearing from the accused. Buzzfeed spoke to another attorney who represents accused students. He described the bill as a “total horror.”
Andrew Miltenberg, an attorney who frequently represents students accused of sexual assaulton campuses, said a note would do little to help, and called Speier’s bill “offensive.”
“This sounds like a total horror — it’s the worst of all possible outcomes,” Miltenberg told BuzzFeed News. Given his involvement in cases that he insists go through incredibly flawed disciplinary processes where alleged perpetrators don’t have a fair shot defending themselves, Miltenberg said the transcript notation “really leaves very little in the way of protections for the accused.”
Last year, NPR on a rise in the number of students who are fighting these allegations in court:
In the past few months, Middlebury College and the University of Southern California were both ordered to reinstate expelled students. So was the University of Tennessee, Chattanooga after a judge ruled the school was basically upending a fundamental principle of justice by making an accused perpetrator prove he wasn’t guilty.
“I’ve looked at what a university has done and thought, ‘Oh, gosh, what are you thinking?’ ” [Western New England University law school professor Erin] Buzuvis says.
Some 50 challenges lodged by accused students are now in the pipeline; that’s up from about a dozen just two years ago.
Rape is a serious charge which is why it ought to be handled by courts, not untrained and ill-equipped college administrators.