Diary

Rubio and Campus Rape

There has been some discussion of late regarding Marco Rubio’s co-sponsorship of Senate Bill #590- the Campus Accountability and Safety Act (CASA).  This bill, authored by Claire McCaskill, is actually the third version of a bill that has been floating around Congress since 2014.  A previous entry here described the bill as “liberal.”  Unfortunately, that previous entry parroted the concerns expressed by National Review.  Also, it stated that the Foundation for Individual Rights in Education (FIRE)- a civil liberties group- testified against the bill in July during Senate committee hearings.  In fact, FIRE’s official statement was that it was a good starting point, that there were many good things in the bill, although they had concerns since due process rights of the accused were not addressed.  Since then, another bill in the House- the Campus Safety Act- does address these issues.  The solution seems simple- combine the two into one good law.

What does CASA contain?  Contrary to other reports, the bill does not cut law enforcement out of the loop.  In fact, it encourages local enforcement to investigate and prosecute legitimate instances of sexual assault.  It does so by making colleges enter into “memorandums of understanding” with local law enforcement to delineate their roles.  By doing so, it relegates the college to status of “first responder.”  The law lays out a training regimen and minimum standards.  Another aspect of the law is that it would provide for uniformity across different campuses within a college system.  For example, what applies to the University of Wisconsin in Madison applies also to their campus in Lacrosse.

As far as the kangaroo courts which discipline students accused of sexual assault, the bill spells out that the college must explain to the accuser that “the institutional student disciplinary proceeding has limited jurisdiction, scope and available sanctions and should not be substituted for the criminal justice system.”  Again- steering the accuser to the police.

With regards to the fines, these are civil penalties assessed against an institution for not adhering to the reporting guidelines spelled out in the law.  In no way are they fines against an institution for not expelling or disciplining students, or not acting upon a complaint.  They are fines for not adhering to reporting guidelines.  Further, the guidelines expressly state that the definitions of sexual assault must conform the Uniform Crime Statistics definitions or other established reporting guidelines.  This actually helps prevent colleges from expanding the definition of “sexual assault.”  The money collected is directed to a grant program under the Violence Against Women Act.  The Department of Education does not “keep” the money.  Thus, they have no incentive to “fine” anyone.  Also, the law specifies that there be no preferential treatment with regards to the accused since at some colleges an accusation against an athlete is handled by the Athletic Department.  The law takes that self-serving potential away.

There are some things in the proposed bill that are troublesome and some omissions that are equally troublesome.  For example, I have written in the past that the Office of Civil Rights (OCR) within the Department of Education is both arbitrary and powerful.  If an offense rises to the level of an actionable offense, then we have a Civil Rights Division within the Department of Justice.  Every cabinet level department does not need and should not have their own civil rights division.  Because they can levy civil penalties (or even waive them), they are being given too much power.  The bill not only further empowers the OCR, it increases the bureaucracy.

Second, at a time when colleges should be cutting non-instructional staff (the greatest area of job growth on college campuses) and associated costs, this bill actually creates another layer of bureaucracy.  And, of course, the omission of due process guarantees for the accused in college disciplinary hearings is sadly missing.

Some people have described this bill as tipping the scales too heavily in favor of the accuser.  News flash: that tipping of the scales has already occurred towards a “preponderance of the evidence,” rather than “beyond a reasonable doubt” and that was achieved by regulatory fiat by OCR.  It was the heavy bureaucratic, regulatory hand of the Obama administration that led to this- not CASA.  Is the bill simply legitimizing this practice?  I think one could make a good case for that viewpoint, but that could be overcome with specifically spelling out due process standards, as the House’s Safe Campus Act does.

This writer has shown in the past that the common “one in five college women are sexually assaulted” meme is patently false.  It lies in the definition of “sexual assault.”  One supposes that a female student who is accidentally brushed against on her buttocks at a crowded party could claim “sexual assault.”  Also, one’s off-color joke is often blown into a case of sexual assault or harassment.  But, it is these students who detract from the truly serious cases of assault, like the the chicken who cried wolf one too many times.  Is it the problem on campuses which the Left portrays?  Absolutely not.  Does it occur?  Absolutely.

As to why Rubio co-sponsored the bill, this writer does not know other than his previous statements.  Perhaps it is a good question for the next debate.  Maybe other GOP co-sponsors like Vitter, Ernst or Grassley can explain it better.  But I do know that parroting back National Review articles without obviously reading the actual text of the bill does a disservice to readers.  As a previous article stated, “This bill is evil. Period.  Full stop.”  Evil?  No.  Incomplete?  Yes.  Absolutely- due process must be protected and must be of paramount importance.  Too many lives of innocent people railroaded by college kangaroo courts have been ruined in the pursuit of “campus justice.”   The correction is the Safe Campus Act.  By taking the best of that law and marrying it to CASA, a bipartisan agreement could and should be reached.

It is understandable that people will look for the bad in candidates in an effort to help “their preferred choice.”  It is bad enough the Democratic Party and Hillary Clinton take things out of context, and twist other things.  Do we have to do it to our own?