The National Association of Scholars has serious concerns about the proposed Campus Accountability and Safety Act (CASA). The bill, introduced on July 30, would amend the Higher Education Act of 1965 and the Jeanne Clery Disclosure of Campus Security and Campus Crime Statistics Act. It is sponsored by Senators McCaskill, Heller, Blumenthal, Grassley, Gillibrand, Ayotte, Warner, and Rubio. CASA is meant to give American colleges and universities stronger incentives to report campus sexual assaults and to take “proactive steps to protect their students and rid campuses of sexual predators.”
The National Association of Scholars applauds the underlying spirit of this proposed legislation. Sexual assault on campus is a serious problem and there is a strong case that colleges and universities should be doing more to protect their students.
CASA, however, embodies a flawed approach. It puts primary emphasis on campus disciplinary committees to investigate, adjudicate, and hand down sanctions in sexual assault cases. Colleges and universities are not good substitutes for police and forensic authorities or for courts of law.
CASA introduces a new campus official, a “confidential advisor,” who is to be granted extraordinarily broad powers. This one individual would serve to receive complaints from students, counsel those students, investigate the allegations, and advocate for the accuser. The “confidential adviser” collapses into one position the roles that in the world outside campus would be separately performed by police investigator, therapist, and attorney. There is, however, good reason why the outside world treats those as separate roles. Fact-finding, counseling, and advocating are fundamentally different jobs that require different and often conflicting skills.
CASA, moreover, leaves the qualifications for these “confidential advisors” unstated. For nearly twenty-five years, the National Association of Scholars has been engaged with cases in which campus officials have overstepped proper legal and professional bounds when it comes to enforcing rules on sexual harassment. We are worried that the people recruited to be the “confidential advisors,” if CASA becomes law, will in many cases be drawn from the ranks of the campus officials who already have shown themselves to be little concerned with the rights of the accused and respect for due process.
Another worrisome aspect of CASA is that it leaves to the accuser the power to veto any report to other campus officials and to criminal justice authorities. This provision undercuts the bill’s own emphasis on greater transparency. It also is likely to marginalize the role of the criminal justice system. Sexual assault is a serious crime. It should be treated as such.
The proposed law’s emphasis on “victim-centered, trauma-informed (forensic) interviews” which are to be “focused on the experience of the victim” raises another troubling question. At the stage of forensic interviews, the individual presenting a complaint may or may not be a victim. That is among the important things that a forensic interview, as it is traditionally understood, is meant to establish. It is worrisome that the proposed law appears to presume the accuracy of the allegation and, implicitly, the guilt of the accused party. It is one thing to treat an individual who comes forward with a complaint with dignity; quite another to assume the validity of the complaint.
Finally, CASA is silent on some issues that a bill like this should address. We see nothing in it about the right of the accused to receive appropriate advice and assistance to investigate the case.
The National Association of Scholars fully recognizes that an atmosphere has arisen on many college and university campuses in which sexual assault has become more frequent. Legislative action by Congress may be needed. We hope, however, that our elected officials will make sure that proposed remedies do not come at the price of sacrificing the rights of the accused, compromising the proper division of responsibilities, sidelining the criminal justice system. CASA in its current form has all of these defects.