Universities Can Now Stop Investigating Rape Complaints; Education Department Will Offer Technical Assistance Explaining How
WASHINGTON, D.C. (May 7, 2920) - Both the earlier guidelines about how colleges and universities ["colleges"] should investigate reports of campus rapes, as well as the new legally binding rules which were issued Wednesday, were heavily criticized for different reasons by various competing interests, but few seemed to notice that the new regulations permit and even "encourage" colleges to avoid all of the problems, and even law suits, involved with conducting their own investigation and campus trials, suggests public interest law professor John Banzhaf.
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New Methods For Dealing With Rape Complaints
The Department of Education [DoEd] has now formally endorsed and encouraged the use of entirely new methods for dealing with such complaints which it says "represent the potential for innovation" to "impartially reach accurate determinations while treating both parties fairly." Indeed, it went so far as to promise that "the Department will provide technical assistance . . about pursuing" these novel approaches which are designed to avoid all of the problems which occur whenever an institution purports to investigate itself, says Banzhaf, who formally proposed this new approach to the agency.
In its own words, "the Department believes these [regional center] models represent the potential for innovation with respect to how recipients might best fulfill the obligation to impartially reach accurate factual determinations while treating both parties fairly. The Department encourages recipients to consider innovative solutions to the challenges presented by the legal obligation for recipients to fairly and impartially investigate and adjudicate these difficult cases, and the Department will provide technical assistance for recipients with questions about pursuing regional center models."
In a nutshell, the plan which DoEd has now formally endorsed permits and even now encourages individual colleges to get out of the business of investigating and adjudicating claims of rape on their own campus. Instead, many colleges in a city or region would establish and fund - on a pre-determined pro-rata basis - an independent regional center which would hire its own staff to conduct investigations of rape allegation from all of it members, and then conduct hearings to determine guilt or responsibility.
This, Banzhaf successfully argued to DoEd, would eliminate the three major problems which exist today: inherent and inescapable conflicts of interest, inadequate investigatory resources, and inexperience and inability to conduct fair hearings.
Conflicts Of Interest
He notes that any time colleges investigate and/or adjudicate claims involving their own students, they have an inevitable and unavoidable conflict of interest - or, at the very least, an appearance of a conflict of interest.
Colleges are often accused - by activist organizations, political figures, and others - of not fairly and effectively investigating complaints because of a well-justified fear of damaging their reputation, discouraging parents from sending their daughters to study there, of becoming known as "RAPE U," etc. If an accused after an investigation and hearing is found to not be responsible for a date rape, the complaints further intensify, especially if the respondent is a star athlete, comes from a rich, well-connected, or otherwise influential family, etc.
On the other hand, different organizations, political figures, and others often accuse colleges of conducting investigations which are unfair if not biased against the respondent in order to avoid criticisms (including student demonstrations, etc.) from activist organizations, the filing of legal complaints, and even official investigations (which, of course, can be both very embarrassing and very expensive). If the respondent is eventually found responsible, such complaints of unfairness and bias can intensify, especially if the respondent is a member of a minority group, an athlete, or otherwise popular or well known.
But by transferring responsibility for investigations and hearings to an outside entity [regional center] which is independent of any particular college and therefore impartial, the proposal would eliminate any actual, potential, or even perceived biases and/or conflicts of interest - either one in favor of the accused (e.g., to avoid adverse publicity, protect popular athletes, etc.) or one in favor of the accuser (to avoid federal complaints and investigations, pressure from activist groups, etc.) - since both tasks would be carried out by the regional center's independent personnel under the overall supervision of the regional center's independent and impartial executive director and board of directors.
Inadequate Investigatory Resources
Many if not most colleges cannot afford to hire, much less to fully employ, investigators with the advanced specialized training and extensive experience necessary to conduct - properly and in a manner which is completely legal and beyond reproach - the investigation of serious alleged sex crimes such as rape. Thus, one cannot expect fair and effective investigations to be conducted by campus police officers, even with many hours of additional sex-crime training, much less by Title IX or other campus bureaucrats who generally may have even less experience and training, and might even see their very positions at the college as dependent in part upon producing "results."
These and related problems would be largely solved if a dozen or more colleges formed a regional center, something like the library- and other consortia which are so popular, and it was the center - and not the individual colleges - which hired and employed several highly paid, highly trained, and very experienced sex crime investigators. Their high salaries would be borne and shared by a large number of colleges rather than by one; there would be a sufficient number of complaints from the many participating colleges to keep them occupied; and the total number of investigations which needed to be handled in any given year would be more stable, and not subject to the variations in numbers which might occur on any one individual campus.
It is also important - to remove conflicts of interest and any possible suspicion of bias or favoritism - that all investigators be completely independent of the institution at which they are conducting the investigation. Using investigators with those rare qualifications employed solely by an independent regional center, rather than by any individual school, completely solves this otherwise intractable bias and conflict of interest problem.
Inability To Conduct Fair Hearings
It is very difficult to conduct an adjudicatory proceeding [fact-finding hearing], even under the best of circumstances, in such a manner that the rights of all participants are fully protected, and unlikely to give rise to any significant court challenges, and under which neither side can reasonably complain about unfairness. It is especially difficult when sexual activity is the subject of the proceeding, and it is conducted by persons without sufficient actual experience in holding such highly charged and sensitive hearings.
Even a university's law professors cannot be counted on to conduct, or even to participate properly in, such a proceeding without significant hearing experience. After all, conducting a hearing involving intimate sexual details and issues of sexual privacy, where emotions run high, and the harm to an accused can be incalculable, is very different and much more difficult than teaching a law school class or even participating in a typical hearing to adjudicate contract disputes, tort claims, etc. Also, if the hearing is conducted, or a final determination is made, by people with any affiliation at all with the college in question, there will be actual or at least potential conflicts of interest, and reasonable understandable concern about possible bias.
These problems are completely solved if the hearings are conducted by former judges and/or retired trial attorneys, or those with similar qualifications, employed not by the college, but rather by a completely separate and impartial entity such as a regional center, and whose only allegiance is to the independent regional center which employs them. Hearings conducted by a completely impartial body (rather than the college itself), and by those with expertise and experience in such proceedings (e.g., retired judges or lawyers, rather than campus bureaucrats, student-faculty panels, etc.) are likely to trigger far fewer complaints to the agency, or law suits.
So Prof Banzhaf suggests that, rather than trying to continue to live with the problems of conflicts of interest, inadequate investigatory resources, and difficulties in conducting fair hearings, and now also having to very substantially revise their rules and policies to conform to all the changes just mandated by DoEd, college administrators should consider simply joining with other nearby colleges to form a regional center to handle all the problems which now plague colleges trying to satisfy all the competing interests when they attempt to carry out investigations and conduct hearings which will not create more controversy, and probably lead to even more expensive lawsuits by disgruntled students.