The New Wild West: Lawlessness on College Campuses

By Sara Scherer

Congresswoman Jackie Speier recently introduced a bill that would require college administrations to mark the academic transcripts of students who have been found to have violated the school’s policies on sexual violence. This bill, masked as an effort to promote safer college campuses, is really just a way to permanently brand young men, who have been suspected of committing sexual assault, as rapists.

The bill, called the Safe Transfer Act, would require the information to remain on the accused student’s academic transcript for five years. The purpose of the bill is to notify other schools of the accused’s alleged misconduct if the student applies to transfer elsewhere. If the accused attempts to transfer schools while a case is pending, the case will be documented on his transcript for one year. In other words, under this bill students are labeled as sexual offenders before any formal determination of guilt—a determination that college administrations are ill-equipped to address.

To be fair, the Safe Transfer Act must comply with existing disciplinary procedures; however, in doing so, the bill legitimizes the fundamentally flawed and unconstitutional procedures that college administrators employ when determining whether a student should be found responsible for a particular criminal act.

When a claim of sexual assault is brought, universities generally utilize disciplinary boards to determine whether the alleged perpetrator should be found responsible. In reality, the criminal justice system is the only appropriate venue for such a determination. Such disciplinary boards are composed of college administrators, teachers, and students who collectively act as prosecutor, judge, and jury. Yes, other teachers and students with no legal training may determine whether a fellow student should be found responsible —whatever that means! — for a serious sexual offense.

Although some colleges allow the alleged perpetrator to retain counsel, the lawyer cannot participate in any meaningful way, such as objecting to certain testimony or cross-examining witnesses. This is because the school hearings are not considered criminal cases, even though the effects of these hearings may have the similar negative, long-term, effects of a criminal case. The major difference is that defendants in criminal cases have due process rights, such as the right to counsel and the right to question and present witnesses in their defense. Without these fundamental protections for the accused, the disciplinary boards operate as more of a witch-hunt against the accused rather than an objective determination of guilt or innocence.

The Safe Transfer Act also promotes the idea that sexual assault crimes should be treated differently than any other violent crime. The bill seeks to promote safety on college campuses but only proposes that information regarding sexual misconduct is included on academic transcripts. Interestingly, the bill does not seek to include information regarding other violent crimes, such as assaults that are non-sexual in nature like robbery and manslaughter. This is perhaps the clearest indication that Congresswoman Speier is not concerned with college safety; she is concerned with irresponsibly and formally branding individuals as sexual predators based only on mere accusations. It is an emotional and hasty reaction that disregards every notion of justice and makes a mockery of a very real problem on college campuses.

Unfortunately, similar mandates have already passed in Virginia and New York, but the Safe Transfer Act will likely encounter defeat in a Republican-controlled Congress, and rightfully so because the ironically titled bill will not make college campuses any safer. Instead, the bill would only encourage and legitimize a new wave of lawlessness on college campuses that treat the accused as the convicted.

Sara Scherer is a third-year law student at the Antonin Scalia Law School in Arlington, Virginia.

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