Op-Ed:  On sexual assault policy, trust colleges, not Uncle Sam

Sexual harassment and sexual violence complaints are surging on campuses. The Obama administration is pressuring colleges and universities to assure more confidentiality for accusers, conduct anonymous student surveys and train bystanders to intervene. It has named some 55 institutions that it believes aren’t doing these things — I teach at two of them, Yale and UC Berkeley — and will soon ask Congress to impose stiff penalties on institutions that do not comply.

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FOR THE RECORD:
Campus assaults: A May 15 Op-Ed article regarding sexual assault policies said Yale University is among the 55 universities being investigated for their handling of sexual misconduct allegations. It is not. —
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But what is the proper role of the federal government in this situation? Few want to raise this question; after all, the complainants want help wherever they can get it, and the institutions fear that questioning federal intervention will make them seem like latter-day “Bull” Connors, shielding injustice by denouncing “outside agitators.”

In truth, the federal government should prod institutions to find their own campus-specific remedies for sexual assault on students rather than forcing them to conform to Washington’s dictates. Here’s why advice is better than mandates:

First, the problem of campus violence defies simple solutions. Many institutions that are deeply concerned about campus rape, that are neither misogynist nor indifferent, have yet to come up with a full solution. This strongly suggests that the problem is inherently difficult to remedy, not that the schools aren’t trying hard enough.

Most assault is related to alcohol and drug abuse among new drinkers, both male and female, who like to take risks but sometimes go too far. College students, suddenly free from parental supervision, live in an aggressive popular culture fueled by peer pressure. The boundaries separating normal libido, unwelcome sex and repellent violence can be blurry, especially if students are in a drunken stupor. If some of the most earnest, best-educated people in America have not yet figured out how to control this, federal officials probably cannot do better.

Second, institutions already have powerful incentives to protect their students, even if they are not yet fully effective. Their failure to prevent campus assaults threatens their most basic economic and reputational interests, as well as their moral standing. Media reports and student protests about sexual victimization infuriate tuition-paying parents and alumni, reduce the loyalty and generosity of donors, and impair the institutions’ ability to compete for applicants and resources. Serious legal risks abound. More students are suing and winning large damage awards against their colleges. Information about sexual assaults and other crimes on campus, which institutions must publicize under federal law, may spawn still more lawsuits. State legislators investigate. Prosecutors may even seek criminal sanctions. For the institutions, taking this problem lightly is simply not an option.

Third, individual colleges and universities have far more experience and knowledge than the government about what will and won’t work in reshaping the conduct and mores of their students. Indeed, the federal government brings to the table no particular problem-solving expertise or methodology; its tools are indignation, of which there is already plenty, and its mailed fist, which the institutions are already feeling. Also militating against a federal solution is the enormous diversity among institutions. They vary by religious orientation, single-gender or coed campuses, rural or urban, large or small, student housing arrangements and a host of other differences. Any effective remedy for sexual assaults will be campus-specific and achieved only after experimenting with various approaches.

Finally, fair and accurate procedures for handling sexual assault claims are very hard to design, as we know from the continuing, centuries-old controversies over what constitutes due process of law. School officials are not trained as interrogators, mediators or judges. Seldom are there other direct witnesses to the encounter, and the pivotal but often ambiguous issue of consent usually turns on “he said / she said” evidence. Complainants often want the investigation, adjudication and remedy to be strictly confidential, yet a secret process may well prejudice the fundamental constitutional right of the accused to confront his accuser and defend himself. Confidentiality also makes it harder for an institution to keep the accuser and the accused from encountering each other, thus inflaming their conflict. Lastly, the institutions have fewer and weaker sanctions to impose than courts do.

Finding the appropriate balance among these competing values, deciding on the appropriate roles of the institutions and the formal criminal justice system, and resolving countless procedural issues are formidable challenges. It will require a flexible learning process tailored to diverse institutions and conditions, not the kind of national, one-size-fits-all mandate that the administration seems to be promoting.

The federal government is essential for many important things: protecting voting, equal opportunity and other civil rights of vulnerable minorities; correcting for many market failures; mobilizing incentives; and more. But understanding, regulating and fine-tuning intimate, tension-filled relationships between young people in the shadow of criminal law — the context in which sexual assault often occurs — is not its metier.

No one knows how to do this perfectly, and educational institutions must do much more to figure out and implement a solution, but they are far more likely than federal bureaucrats to come up with fair and effective solutions.

Peter H. Schuck, a professor at Yale Law School, is now a visiting professor at UC Berkeley’s law and public policy schools. His new book is “Why Government Fails So Often, and How It Can Do Better.”