The bipartisan sponsors of the campus sexual assault bill introduced this week say they are proud of the “stiff fines and real teeth” they would impose on colleges that underreport assaults. But there is a weakness in the legislation that makes the prospect of fines somewhat illusory: a lack of funding to hire more investigators.
Instead, the real power of the bill would most likely come from a provision that calls for a public database of campus assaults — with information provided by students, not administrators, through a survey. Revealing those results would amount to a public shaming that would capitalize on outrage over recent studies showing that about 1 in 5 undergraduate women are sexually assaulted while on campus.
Wednesday morning, eight senators announced the bill, the Campus Accountability and Safety Act. Sen. Kirsten Gillibrand, D-N.Y., said the legislation would impose significant financial penalties on colleges for noncompliance with new federal mandates to release data about sexual violence on campus.
Every college would be required to participate in the survey and publish results online, and the penalty for colleges that don’t report sexual assault crimes, as required by the Clery Act, would increase to $150,000 from $35,000 per violation.
In theory, colleges that mishandle sexual assault cases today are at risk of losing their federal funding (potentially hundreds of millions of dollars), a punishment lawmakers say is unreasonable because it would effectively shut down college operations, compromising the education of a college’s entire student body. The promise of monetary punishment relies on the investigative power of the understaffed Education Department’s Office for Civil Rights.
A loss of federal funding is so extreme for colleges that the punishment has never been imposed. Couple that with the fact that the government agencies responsible for holding colleges accountable have found themselves swamped with complaints under Title IX, which protects against discrimination based on gender in education programs — from equity in sports to sexual assault — and enforcement seems like an empty threat.
The new bill proposes fines of up to 1 percent of a college’s operating budget. If Harvard were found responsible, for example, the university would be on the line for $42 million — a sizable fine, but one that would probably not hurt the university’s students.
But these far more realistic penalties still require manpower. Without enough staff to evaluate student complaints, many colleges that violate federal law will not be investigated or fined.
The Office for Civil Rights does not have a permanent staff position dedicated exclusively to investigating Title IX complaints of sexual violence, although 55 colleges are under investigation for how they handled sexual assault cases. According to Gillibrand’s office, it employs “half the staff it did in 1980, when the OCR received only a third of the amount of complaints as today.”
In the 1980s, the Office for Civil Rights had about 1,150 staff members and handled 3,000 Title IX complaints annually. In fiscal 2013, 600 staffers handled 9,950 complaints — including those related to race, disability and gender discrimination. The office handles a very broad range of civil rights violations, including unequal access to Advanced Placement exams for minorities. That means it can take months, if not longer, between a student filing of a Title IX complaint and the beginning of an investigation.
Similarly, the Clery Compliance Team within the Office of Federal Student Aid Compliance Division, which investigates colleges that fail to disclose crime on campus, has only 13 staff members. Because of poor staffing, Gillibrand’s office estimated, 63 percent of colleges that do not fulfill this federal requirement go unpunished.
“Title IX can’t have teeth when the OCR is not making reports fast enough, is dramatically underfunded, and is not getting things done,” said Michele Dauber, a law professor at Stanford, where she helped develop the university’s Alternative Review Process, a disciplinary procedure established at Stanford in 2013 to address sexual assault, relationship violence and stalking.
In April, Gillibrand and Sen. Claire McCaskill, D-Mo., who also is sponsoring the bill, called for more than $100 million from taxpayers for the Education Department to increase its investigative staff. As it stands, this bill does not ask to increase staffing.
Colleges would be required to supply confidential advisers to victims and train counselors. Athletic departments would not be allowed to handle sexual assault complaints. Colleges would need to coordinate a uniform plan with local law enforcement agencies. And the bill would provide federal funding to create and distribute an inexpensive, anonymous annual survey that asks all undergraduate students about experiences with sexual violence. Parents and students would be able to see the data, which may influence their decisions when applying to college.
“Right now schools have reason to repress reporting and be focused on public image rather than being focused on the problem, because there is no real penalty for not accurately reporting and there is no standardized survey,” said Nancy Cantalupo, a researcher with the Victim Rights Law Center at the Georgetown University Law Center, who acted as an informal consultant during some stages of the bill’s creation.
Dauber says transparency is the single most important change Congress could bring about.
“Absent transparency, we don’t know what problem we are trying to solve and we have no idea how to solve it,” she said. “We are just fumbling around in the dark. When you want to change, you take an honest inventory of your situation.”
Some colleges openly encourage their students to report assaults; some don’t. This inconsistency means that colleges making special efforts to address violence on campus appear to have disproportionately high numbers of sexually violent crimes when compared with peer institutions. But a high number of reported assaults may be a good sign in this sense: It indicates that students feel safe using college resources when they have been a victim of sexual violence.
When reporting crimes is part of a standardized federal survey that is made public, the only way colleges can lower statistics is to decrease rates of violence, rather than suppress rates of reporting.
“It will take the public image competition off the table and help schools to say: ‘OK, we have this problem. Now what are we going to do about it?’” Cantalupo said.