Transformation requires transparency: critical policy reforms to advance campus sexual violence response.

• Author: Ridolfi-Starr, Zoe
• Position: A Conversation on Title IX

FEATURE CONTENTS INTRODUCTION I. PROCEDURAL OPACITY HAS HARMFUL CONSEQUENCES II. PROCEDURAL OPACITY PREVENTS US FROM ANSWERING CRITICAL QUESTIONS A. Are Campuses Investigating and Sanctioning Cases Fairly? B. Are Campuses Discriminating Against Specific Communities? III. SOLUTION: A ROBUST LEGISLATIVE MANDATE FOR INCREASED TRANSPARENCY A. Any Solutions Must Address Privacy Concerns B. Models Provide Guidance Opportunities C. Transparency: The Specifics 1. Information Regarding the Investigation and Sanctioning of Cases 2. Demographic Information on the Involved Parties 3. Information Regarding Interim Measures and the Long-Term Outcomes for Students Who Filed Reports of Gender Violence CONCLUSION INTRODUCTION

The current debate surrounding campus adjudication of gender violence has painted a picture of two warring factions: in one corner are the feminists battling for greater awareness of sexual violence and campus processes that center on victims' needs, and in the other are critics who argue schools have overcorrected to the point of discriminating against accused students. The present discourse suggests that students who are making accusations of gender violence and students against whom such allegations are made have mutually exclusive interests. But there is an area where all students share a common interest: ensuring fair and transparent campus disciplinary processes.

As a result of tremendous national attention over the past few years to sexual and dating violence in schools, initiatives to improve school disciplinary policies have emerged across the country at both the school and governmental levels. Sexual and dating violence occurs on college campuses with disturbing frequency: one in five female students report being sexually assaulted during college; (1) nineteen percent of transgender and gender-nonconforming students report having experienced sexual assault or misconduct; (2) and college-aged women are the group most likely to experience dating violence. (3) Thus far, efforts to confront this violence have focused on prevention and response, both of which are critical elements of addressing epidemic levels of violence and inadequate institutional responses. (4) But the experiences of student survivors who attempt to report to their schools, of advocates pushing for improved policies, and of critics who argue that accused students have been wronged in the process show us that new policies will only be cosmetic unless these reform efforts include rigorous transparency requirements. A fair campus process benefits both accused and accusing students; however, as I will show, it is impossible to assess and ensure the fairness of these systems without transparency requirements.

This Feature argues that there is a troubling lack of transparency and accountability in the processes colleges and universities use to address campus sexual and dating violence. This opacity creates a culture of impunity for campus officials entrusted with ensuring the safety of students and further stokes critiques from those who argue for more robust rights for accused students. I discuss a number of concrete ways in which the current lack of transparency regarding college disciplinary processes creates challenges for both accused and accusing students. Both groups argue that these processes lead to unfair investigations and discrimination against particular populations. However, these difficulties are not intractable; federal legislation can require transparency to better serve all students. In this Feature, I draw on a recent New York State law mandating increased campus transparency as a promising example, which could be improved upon and implemented nationwide. This law requires colleges and universities to release aggregate, anonymized data regarding the adjudication of campus gender violence reports while also addressing the issue of student privacy, and it should serve as a template for a more comprehensive transparency mandate at the national level.

Concern over how colleges and universities handle gender violence complaints has reached a fever pitch. Students who have experienced sexual and dating violence on campus are condemning school disciplinary responses as unfair and ineffective, and student activist groups--like No Red Tape (5) and the Carry That Weight Campaign, (6) which I helped found at Columbia University--have gained visibility and momentum in their efforts to change campus policies and culture. (7) At the same time, students accused of rape have also levied concerns about the fairness of campus procedures; these concerns are surprisingly similar to those raised by survivors. (8) Both groups have complained about the length of investigations, the protocol for submitting evidence or calling witnesses, the fairness of sanctions, and the partiality of adjudicators. (9) Some accused students are even filing Title IX suits alleging that their schools persecuted male students. (10) Elected officials are scrambling to propose competing bills addressing perceived deficits in campus procedures. (11) Meanwhile, law professors at elite universities are slamming policies they see as unfair to accused parties. (12) The only thing that anyone appears to agree on is this: whatever schools are doing now, they are getting it wrong.

This is an important moment for those invested in the safety of students and the fairness of campus policies to pause and consider the basis for these arguments. Whether groups are advocating for harsher penalties for perpetrators or increased procedural protections, the remarkable opacity of campus disciplinary processes means that all of these claims currently lack a demonstrable empirical basis. Few, if any, stakeholders have access to the information that would be necessary to make substantive and quantitatively significant evaluations of campus responses to gender violence reports.

1. PROCEDURAL OPACITY HAS HARMFUL CONSEQUENCES

   The current lack of transparency has a clear, direct impact on the credibility of campus disciplinary processes. In the eyes of both accused and accusing students, the policies that schools follow--or claim to follow--when responding to a report of sexual or dating violence are shrouded in secrecy and vigorously guarded from public exposure. Students report that the lack of clarity often continues even during the process of an investigation. This kind of secrecy is harmful to all students. It creates a culture of impunity for campus officials, who are free to make mistakes without facing consequences. These mistakes--whether the results of deliberate attempts to cover up reports, subconscious biases, or lack of training and expertise--can have devastating consequences for students on either side of an investigation. Secrecy stokes mistrust of the process and intensifies suspicions of administrative abuses, which in turn discourages students from coming forward to report and seek the help they need after experiencing rape or abuse on campus. And lastly, whether the ultimate ruling is in favor of the accusing or accused student, this lack of transparency and trust delegitimizes the outcomes of all cases.

   Only about half of all students surveyed recently at twenty-seven colleges and universities across the United States believed it very or extremely likely that a fair investigation would occur after a report of sexual assault or misconduct. This number was markedly lower for the groups most likely to be victimized, namely female and transgender or gender-nonconforming students. (13) Of students who experienced non-consensual sexual penetration and chose not to report, about a third indicated this was because they "did not think anything would be done about it." (14) This lack of confidence is exacerbated, if not caused by, the extreme lack of transparency on most campuses. Schools cannot expect students, or their parents or attorneys, to trust a system that is so deliberately opaque and plagued by stories of negligence and bias. The current dearth of information creates distrust from all sides and invites critiques that campus processes are arbitrary and unfair.

   Though we lack comprehensive or quantitative information regarding the outcomes of school disciplinary processes, there is abundant qualitative and anecdotal evidence that schools are enforcing neither their own policy requirements or stated ethical standards, (15) nor those required by the U.S. Department of Education (DOE), Title IX, and/or state laws. This lack of enforcement by schools is evidenced by the remarkably high number of schools under investigation for violating these policies and the increasingly frequent findings of noncompliance in these investigations. (16) As a survivor of sexual assault on campus and a student activist at Columbia University, I saw firsthand the disturbing disconnect between Columbia's publicly stated policies and values and the way school officials actually handled complaints of sexual and dating violence. (17) As a result, I worked with a group of twenty seven other students to write and file a Title IX complaint against the school in April 2014, outlining dozens of cases in which we argued that the school allowed violent perpetrators (including serial rapists) to remain on campus; (18) discriminated against LGBTQ survivors in particular; (19) forced survivors to take mental health leaves, instead of addressing their rape reports; failed to provide critical resources and protection for students; retaliated against students who attempted to report; and otherwise violated the school's own policies as well as federal laws in handling reports of sexual and dating violence. (20) In my national advocacy work, I see heated, personal, high-stakes debates playing out about the fairness of college adjudication systems. There is no question as to whether the campus disciplinary procedures are working appropriately--they are not. The questions that remain unanswered...