Is There a Right to Cross-examine in Campus Sexual-Assault Hearings?

When Brian Harris was found responsible for sexual assault and expelled from St. Joseph's University, he filed a complaint against the school, claiming he was denied an opportunity to "question and confront his accuser and witnesses to test their veracity and credibility" in violation of provisions in the student handbook and "basic due process" (Complaint, ¶¶ 55 and 82(k)).

Harris and other male college students accused of sexual assault have filed lawsuits, alleging that campus investigations and hearings are unfair and biased in favor of their accusers, depriving them of their right to due process.

As we discussed in our post on the standard of proof in disciplinary proceedings, many of these cases center on the credibility of the two parties. The specific question we'll look at in this post is whether in a conduct hearing a student accused of sexual assault has a right to "question and confront his accuser" under the Sixth Amendment to the U.S. Constitution, which reads:

In all criminal prosecutions, the accused shall enjoy the right … to be confronted with the witnesses against him …

The U.S. Department of Education has been clear that in campus sexual assault hearings allowing the accused to directly confront the accuser could cause more harm to the victim. ED's 2001 Sexual Harassment Guidance says "schools should ensure that steps to accord due process rights do not restrict or unnecessarily delay the protections provided by Title IX to the complainant." In its April 2011 Dear Colleague Letter, the ED is more specific:

OCR strongly discourages schools from allowing the parties personally to question or cross-examine each other during the hearing. Allowing an alleged perpetrator to question an alleged victim directly may be traumatic or intimidating, thereby possibly escalating or perpetuating a hostile environment.

While the ED enforces Title IX compliance in responding to sexual assault complaints, it does not have the last word on the constitutional right to cross-examine witnesses in disciplinary proceedings where the accused faces expulsion. Federal courts have reviewed cases involving due process rights in student conduct proceedings and stopped short of requiring the right to cross-examine witnesses when a student faces expulsion, though the issue has not been finally decided.

Before his appointment as a U.S. Supreme Court Justice, Thurgood Marshall represented Alabama State College students who claimed a denial of due process because they were expelled for misconduct without a notice or hearing. The U.S. Court of Appeals for the Fifth Circuit agreed that due process required the school to give the students notice of and a hearing on the charges before they could be expelled. However, the court said the nature of the required hearing varied, depending on the circumstances. [Dixon v. Alabama State Board of Education (5th Cir. 1961) 294 F.2d 150, cert. denied, 368 U.S. 930 (1961)]

While the Dixon court concluded that a student misconduct hearing (such as one on sexual assault) would require more than a hearing on a failure to meet academic standards, it explained that "more" did not include the right to cross-examination:

By its nature, a charge of misconduct ... depends upon a collection of the facts ... [and] an opportunity to hear both sides in considerable detail ... This is not to imply that a full-dress judicial hearing, with the right to cross-examine witnesses is required.

Citing the Dixon case with approval, the U.S. Supreme Court reviewed a case involving a 10-day suspension from high school and found the students were entitled to "some kind of notice and ... some kind of hearing," but the Court also acknowledged, without elaborating, that "[l]onger suspensions or expulsions ... may require more formal procedures." [Goss v. Lopez (1975) 419 U.S. 565, 579 and 584]

The U.S. Court of Appeals for the Second Circuit also cited the Dixon case when it acknowledged "[t]he right to cross-examine witnesses generally has not been considered an essential requirement of due process in school disciplinary proceedings." [Winnick v. Manning (2nd Cir. 1972) 460 F.2d 545] Since Glen Winnick admitted that he participated in disruptive behavior in a classroom of students taking a final exam, the court said cross-examination of witnesses would not have changed the outcome and have "been a fruitless exercise." However, the Winnick court left open the possibility that "if a case of a substantial suspension of a state university student has resolved itself into a problem of credibility, 'cross-examination of witnesses might [be] essential to a fair hearing.'"

Following its Winnick decision, the Second Circuit again did "not find it necessary to decide the point" of whether students were entitled to cross-examine witnesses in a conduct hearing involving unauthorized use of a residence hall for a "sleep in." [Blanton v. State University of New York (2nd Cir. 1973) 489 F.2d 377] Again, the court left open the possibility that in student misconduct hearings where the central issue is whether to believe the accused or the accuser the right to cross-examine witnesses may be required.

In a case decided by the Eleventh Circuit Court of Appeals, two veterinary students who were accused of academic dishonesty sued their university for violating due process. They were not allowed to directly cross-examine adverse witnesses but were allowed to ask questions through the hearing officer. The court found, while due process required the university to allow the students to respond to the charges, due process didn't require cross-examination of witnesses since student "rights in the academic disciplinary process are not co-extensive with the rights of litigants in a civil trial or with those of defendants in a criminal trial." Therefore, the court concluded that there was no denial of due process. [Nash v. Auburn University (11th Cir. 1987) 812 F.2d 655, 664]

Finally, a U.S. District Court in New York found that a "higher level of formality to ensure fairness" was required to satisfy constitutional due process in a case where a male student accused of rape faced a two-year expulsion. The court described this "higher level" as:

At the very least, in light of the disputed nature of the facts and the importance of witness credibility in this case, due process required that the panel permit the plaintiff to hear all evidence against him and to direct questions to his accuser through the panel.

Absent a decision from the U.S. Supreme Court on this issue, the ED's position allowing questioning of adverse witnesses through the hearing officer — but not direct cross examination — does not violate constitutional due process.

Moreover, the ED's position is consistent with the policy of encouraging students to report incidents of sexual violence. The possibility of facing cross-examination by their assailants would discourage many victims from reporting sexual assault contrary to the goals of the Campus SaVE Act and the 2011 Dear Colleague Letter. These are laudable goals: protecting victims from secondary trauma, encouraging reporting, increasing accountability, reducing sexual assault, and making campuses a safer place to learn.

Why Are Students So Unhealthy during Finals Week?

It's that time of the year: the trees are all bare, a coat of frost shines on the sidewalk, the smell of  anxietys hangs in the air, and sleep-deprived students lumber around campus unshowered and unshaven. Ah, finals season!

Most of us intuitively understand that stress is connected to students' failure to fulfill even the most basic self-care during finals, but why? After all, students usually don't have class or other commitments during finals week, so they should be able to focus exclusively on studying without ignoring the basics like brushing their teeth and getting enough to eat.

Indeed, one might think that faced with the intense pressure of finals, students would renew their focus and effort. In fact, research suggests otherwise, demonstrating how stress alters the way we make decisions.

When stressed out we tend to focus on short-term rewards and pleasurable outcomes of a decision while ignoring the less savory and long-term consequences. That's why it's so hard to resist eating that pint of ice cream in your freezer after a tough day or to forgo buying that new pair of shoes you covet but can't afford after a miserable meeting at the office.

In other words, it is exactly because students have to study for five finals that a friend's invitation to party tempts them so much. The stress causes them to focus on the immediate reward of going to the party (socializing and drinking) and not the downside of losing a night's sleep to late night carousing (hang over and poor grades).

Stress also makes it more difficult for students to connect bad decisions to their consequences. Even if students go out the night before a test, stress will help them remember the pleasurable experience of socializing and drinking and forget the fact that they were horribly hung over for the exam. This is one reason why researchers also link stress to substance abuse and addiction. Under stress, you focus on the pleasures of the drug and lose sight of the negative consequences.

Am I saying that stress makes us short-sighted and irresponsible? Not quite. Another recent study shows that under stress some people are actually more likely to sacrifice their time to help someone they care about. The research supports the uplifting hypothesis that humankind's default setting is to self-sacrifice (when it comes to close relationships). This is well and good for our species, but it also explains why some harried students take on big social commitments during finals week when they should be making more time for themselves.

All this rather paradoxically suggests that exactly when we need to buckle down and get the most done, we have the fewest cognitive resources to do so because stress saps our willpower. Given this fact, a nudge in the right direction might help students keep their cool and improve their grades.

A few common tips worth reminding students about:

Exercise (like walking) has long been touted as an important stress reliever and memory aid. Recent studies suggest that regular exercise also boosts creativity.

Mindfulness and meditation are also good ways to decompress and still the turbulent waters of daily life.

Also remind students to wait until after finals to make big decisions. The simple act of waiting can help students make better, more reflective choices.

Rewriting the College Hook-Up Script

Popular media makes it seem like college today is more like the seamier corners of a Las Vegas club than the ivy-clad, brick-edifice institution of yore.  Students today, it seems, are more likely to hit the bottle than the books and more likely to get a booty call than a phone call.

But college life isn't one big party as our media often portrays it. Indeed, the sensational portraits of college depravity, however well intended, might be doing more harm than good by reinforcing students' misconceptions about college life.

Let's take a look at some popular misconceptions about "hook up" culture, how they might be hurting our students, and how we can confront these misconceptions to enable students to rewrite the hook-up script.

Are Millennials are more sexually active than past generations?

Hook up culture is often portrayed as the crisis of the current generation of college students. The internet is full of accounts of the collapse of morality on college campuses. But scholars who study hook up culture trace its roots back forty years or more.

In her book on campus sexual culture, "Hooking Up," Kathleen Bogle suggests that the shift to hook up culture was already underway by the mid-1970s. She believes hook up culture arose out of the turmoil of the wider cultural and demographic changes of the 60s. In that regard, it's something that both current students and their parents experienced.

Other researchers put the origins in the early 1920s, when "with the rise of automobile use and novel entertainment venues...traditional models of courting under parental supervision began to fade" (Garcia et al.). Now we're talking four generations of hook-up culture!

Indeed, a study presented this year at the American Sociological Association's annual meeting found little change in college students' behaviors or attitudes regarding sex in the last 25 years.

The study compared the answers of two batches of college students, 1988-1996 and 2002-2010, on the General Social Survey. Attitudes and behaviors between the two groups were quite similar. For example, 65% of the first group reported having sex at least once a week compared to 59.3% of the second group. Attitudes regarding sex between minors, cheating on a spouse, and premarital sex also remained largely unchanged.

The researchers concluded, "[o]ur results provide no evidence that there has been a sea change in the sexual behavior of college students or that there has been a significant liberalization of attitudes towards sex."

Is everyone is hooking up?

This summer, the New York Times published a controversial trend piece by Kate Taylor. Taylor reported that campus hookup culture was increasingly driven by young women, who were intent on "building their résumés, not finding boyfriends." In other words, it's not just men who are driving hook up culture: everyone's doing it.

But while hook ups may dominate discussions about campus culture, not everyone is actually hooking up.

Indeed, according to the most recent American College Health Association Survey, over a third of college students have never had sex. And while 46% have had sex in the past month, the vast majority of sexually active students have only had one sexual partner in the past 12 months. In fact, 47% of college students reported being in a relationship.

That doesn't sound like students intent on casual sex and one-night stands.

Why do we talk about hook up culture so much then?

Lisa Wade, a sociologist at Occidental college, suggests that it might have to do with who is hooking
up: white, wealthy, heterosexual students. The status that these students' race, class, and sexual orientation confer allows them and their habits to dominate national discussions of campus culture.

"Students feel that a hookup culture dominates their colleges not because it is actually widely embraced," Wade writes, "but because the people with the most power to shape campus culture like it that way."

Indeed, contrary to Taylor's piece in the Times, Kathleen Bogle found that hook up culture was driven by men. In their interviews with Bogle, women were far less satisfied with hook up culture than their male peers.

In general, women preferred relationships, whereas men preferred casual encounters.

Bogle offered two reasons for this difference. First, the women she interviewed were interested in getting married earlier than the men. Thus many women were actively looking for a long term relationship that might result in marriage. The men simply weren't.

Bogle also pointed to a persistent double standard in campus sexual culture. While men were praised for being promiscuous, women were stigmatized. If they behaved like men and pursued multiple partners, women risked earning derogatory labels like "slut." Indeed, many men confessed that they wouldn't date a woman who had had many sexual partners. Thus in order to protect their reputations, women sought out stable relationships.

So not everyone is hooking up and not everyone wants to. Instead the hook-up elites are imposing a hegemony over campus sexual culture.

What we talk about when we talk about hooking up

The problem with these misconceptions is that they make hook up culture seem inevitable. Indeed, when we press too hard on the prevalence of hook up culture, we might be sending students mixed messages.

On the one hand, we imply that students are randy and oversexed.  We insist that hook ups and no-strings-attached sex are endemic to college campuses.

On the other hand, we blandly tell students that they overestimate how much sex their peers are having.

Which message do you think students will remember?

If the vivid image of a college free-for-all is what sticks in students' mind, then we may be doing
them a disservice.

Students do tend to overestimate their peers' sexual activity, making the behavior of a few outliers (the hook up elites) appear to be the social norm. Students then turn to these social norms to guide their own behavior, reinforcing hook up culture. 

It is possible that by talking so much about hook up culture (even when condemning it) that we inadvertently reinforce the idea that the outliers are the social norm, that everyone really is hooking up.

Instead of just condemning hook up culture, we need to offer some alternatives. Or better yet, we need to elicit some alternatives from students themselves.

Rewriting the hook up script

According to Bogle, hook up culture is a social script: a set of cultural and social expectations surrounding dating that students internalize and follow. Bogle contrasts the hook up script with earlier social scripts, such as "courting" or "going steady," which were the products of different social and demographic conditions.

Rather than just trying to correct students' perceptions of their peers' behavior or point to the flaws of hooking up, perhaps we might engage with students to write new social scripts, in order to get them involved in rewriting hook up culture.

What might that script look like? It's hard to say. But it can start with conversations about dating, asking what men and women want to get out of their college experience and whether that includes meaningful intimate relationships.

In fact, research suggests that some women pursue hook ups because the risks of a causal encounter are actually less than those of a long-term relationship: "Bad hook ups are isolated events, while bad relationships wreak havoc with whole lives."

The conversation about hook up culture can begin with freshman orientation, and it can continue in classrooms from gender studies to philosophy.

Getting students to see the fact and fiction of campus culture is a laudable goal. Getting them to understand that they aren't simply passive subjects of culture, but active agents who can change it has the potential to make a real impact on campus life.

Students can be so intent on changing the world that they fail to see the change that needs to happen right around them.

There's a well-known parable about two young fish swimming in the sea. An older fish swims up and asks, "How's the water?" After the older fish swims away, one young fish turns to the other and asks, "What's water?"

The point is, students are so immersed in the culture that surrounds them, they don't even know it's there. But it is. And it affects them. Unlike the two fish, however, students have the chance to find new waters.

Start a conversation with students and keep it going. Help them replace the hook-up culture myth with the script that fits their reality.

Awareness is the first step towards changing the "water" around us...some students may not even know they're drowning in it.

 

Works Cited

Bogle, K.A. (2008) Hooking Up: Sex, Dating, and Relationships on Campus. New York: New York UP.

Garcia, J.R., et al. (2012) "Sexual Hookup Culture: A Review." Review of General Psychology, 16, 161-176.

Standards of Proof

In a typical "he-said-she-said" case of sexual assault, he says it was consensual sex, and she says it was rape. These cases are usually decided on the accused's and victim's credibility, and the standard of proof used to reach a decision may tip the scales, as illustrated by a University of Montana (UM) case.

During its investigation of UM for Title IX compliance, the U.S. Department of Education (ED) reviewed a student conduct case in which the lower "preponderance of evidence" standard of proof was applied in the initial proceeding and the accused student was found guilty of sexual assault. After the student appealed, a higher "clear and convincing evidence" standard was applied and the decision was reversed.

The Department of Education has in fact established "preponderance of evidence" as the standard schools must use in cases involving sexual assault. As clarified in its April 2011 Dear Colleague Letter, "in order for a school’s grievance procedures to be consistent with Title IX standards, the school must use a preponderance of the evidence standard (i.e., it is more likely than not that sexual harassment or violence occurred)."

Unfortunately, the ED has not provided any explanation of the different evidentiary standards. This post will define the standards of proof and look at how those standards apply in the decision-making process.

Three Judicial Standards

Three different standards are used in courts of law. Generally, each of the three judicial standards of proof¹ requires a different level of confidence in the facts supporting a decision:

• beyond a reasonable doubt requires at least 95% confidence that the facts support a guilty verdict
• clear and convincing requires at least 70-75% confidence that the facts support the decision
• preponderance of evidence requires at least 50.1% confidence that the facts support the decision

In reality, the decision-making process is not as precise as these percentages indicate, but they are one of the yardsticks used to measure the fairness of a decision. The different standards reflect the cost of a wrong decision, measured by the harm caused not only to the accused who is wrongfully convicted or the party that suffers financial harm in a civil suit, but to the legitimacy of the judicial system as a whole.²

The "beyond a reasonable doubt" standard of proof used in criminal cases greatly reduces the risk of convicting the wrong person and reflects the high value of personal liberty to society.³  The 18th Century English jurist William Blackstone explained it this way: "It is better that ten guilty persons escape, than that one innocent suffer."⁴  This standard is fundamentally fair and stops short of imposing the impossible burden of having no doubt that the accused is guilty.

The intermediate standard of clear and convincing proof requires a "high probability" or "reasonable certainty" that the weight of evidence favors the decision. It is applied in civil cases involving more than "mere loss of money," such as fraud or other quasi-criminal conduct, deportation, and permanent termination of parental rights.⁵

It is also the standard applied in involuntary commitment proceedings involving mentally ill persons. In Addington v. Texas, the U.S. Supreme Court concluded that, "[g]iven the lack of certainty and the fallibility of psychiatric diagnosis, there is a serious question as to whether a state could ever prove beyond a reasonable doubt that an individual is both mentally ill and likely to be dangerous."⁶

The preponderance standard is the lowest of the three judicial standards of proof and requires that the weight of evidence makes it more likely than not that the decision is correct. This is the standard used in civil litigation that primarily involves a claim for money. Because the risk of harm involves dollars not loss of liberty society places a lower value on the risk of a wrong decision, which is shared equally by both parties.

As the ED confirmed in the UM "blueprint," preponderance of evidence is also the standard required in disciplinary proceedings involving sexual misconduct where the accused faces sanctions ranging from a verbal warning to expulsion from school, as well as a damaged reputation.

A fourth standard of proof, "substantial evidence," is defined as "'more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'"⁷ Strictly speaking, this standard only requires a "substantial" amount of evidence to support a decision. It does not require weighing all of the evidence and deciding which way the scale tips.

The "substantial evidence" standard is applied in disciplinary proceedings involving academic misconduct. In Missouri v. Horowitz, the U.S. Supreme Court found a student's failure to meet academic standards "calls for far less stringent procedural requirements," in terms of notice and hearing, than a student conduct violation.⁸

The Fourth Standard

While the ED requires the preponderance standard for Title IX compliance, the U.S. Supreme Court has not squarely answered the question of which standard of proof is constitutionally required in student disciplinary proceedings involving sexual assault. And lower federal courts have not clearly answered this question.

For example, in Smyth v. Lubbers,⁹ a federal court reviewing the suspension of a state university student for possession of marijuana concluded that the substantial evidence standard was not adequate under the circumstances of that case because a "conviction for 'possession of narcotic drugs' in violation of state criminal laws and/or College regulations is plainly an extremely serious attack upon a person's good name and reputation." The court also pointed out that a one-term suspension from school "is a harsher punishment than he was likely to receive from either a state court ... or a federal court, for a first-time offense of simple possession of marijuana."

Under these circumstances, the court found that "any standard lower than a 'preponderance of evidence' would have the effect of requiring the accused to prove his innocence" because the substantial evidence standard only requires that a (substantial) quantity of evidence support the decision. Instead, the court concluded a "constitutionally adequate" standard of proof in that case could not be lower than the preponderance of evidence standard, but the court didn't specify the appropriate standard.

On the other hand, in Gomes v. Univ. of Maine System,¹⁰ another federal court refused to overturn the university's decision to suspend two public university students after they were found guilty of sexual assault even though the university's decision was based on substantial evidence. The court found the disciplinary proceeding, while "not ideal," was fundamentally fair. The court explained the tension between these two principles:

A university is not a court of law, and it is neither practical nor desirable it be one. Yet, a public university student who is facing serious charges of misconduct that expose him to substantial sanctions should receive a fundamentally fair hearing. In weighing this tension, the law seeks the middle ground.

The middle ground was described as "whether, in the particular case, the individual has had an opportunity to answer, explain, and defend, and not whether the hearing mirrored a common law criminal trial." Neither the Court nor the litigants questioned the substantial evidence standard used in that case.

Title IX Compliance Standard

Even when school officials know what standard of proof to apply, they may not understand how to apply it. Going back to the UM case we discussed at the beginning of this post, the official handling the appeal said he found the accused and complainant both credible. He also said he viewed it as "a case of differing perceptions and interpretations of the events in question." It turns out that the deciding factor was that some of the complainant's statements began with "I think" or "I don't think." The official interpreted this as a "hesitant and equivocal response" and concluded that the complainant's credibility did not meet the higher standard of proof.

The ED found that UM's handling of that case on appeal showed an "incomplete understanding" of how to assess credibility, victim responses, force and consent. Therefore, UM officials needed "more training on how to evaluate evidence and the appropriate evidentiary standard to assess it."

Interestingly, the U.S. Supreme Court expressed doubt about whether the different standards of proof actually affect outcomes or simply provide a way to measure the value of what's at stake:

Indeed, the ultimate truth as to how the standards of proof affect decision making may well be unknowable, given that factfinding is a process shared by countless thousands of individuals throughout the country. We probably can assume no more than that the difference between a preponderance of the evidence and proof beyond a reasonable doubt probably is better understood than either of them in relation to the intermediate standard of clear and convincing evidence. Nonetheless, even if the particular standard-of-proof catchwords do not always make a great difference in a particular case, adopting a standard of proof "is more than an empty semantic exercise."¹¹

It has also been suggested that school officials deciding sexual assault cases may "unwittingly require clear and convincing evidence" regardless of the appropriate standard because of the serious consequences to the accused.¹² What we're left with are two possibilities: either the different decisions in the UM case were the result of applying different standards of proof, or one UM official simply believed what she said and the other official believed what he said.

How to evaluate victim credibility is a critical part of the disciplinary process. Brain research has provided insight into trauma victims' behaviors and responses that helps explain why their credibility is often met with skepticism. In later posts, we'll look further into this and other issues that provide a deeper understanding of the complicated nature of student disciplinary proceedings involving sexual misconduct.

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<sup>1. A corollary of the standard of proof is the burden of proof, which is placed on the party who filed a lawsuit or the prosecutor who brought criminal charges to present evidence that establishes the facts required to prove a civil claim or criminal charge in a court of law. Once evidence is presented, a decision is made by applying one of the three judicial standards of proof.
2. U.S. Supreme Court Justice Harlan explained that establishing a standard of proof reflects the social costs we are willing to pay for making the wrong decision, and noted that erroneous decisions are inevitable: "First, in a judicial proceeding in which there is a dispute about the facts of some earlier event … all the factfinder can acquire is a belief of what probably happened ... In this regard, a standard of proof represents an attempt to instruct the factfinder concerning the degree of confidence our society thinks he should have in the correctness of factual conclusions for a particular type of adjudication. .... A second proposition ... is that the trier of fact will sometimes, despite his best efforts, be wrong in his factual conclusions. In re Winship (USSCt 1970) 397 U.S. 358, 370.
3. In re Winship, 397 U.S. 370; Woodby v. Immigration and Naturalization Service (USSCt 1966) 385 U.S. 276, 285.
4. 4 William Blackstone, Commentaries *358.
5. Addington v. Texas (USSCt 1979) 441 U.S. 418, 431.
6. Id. at 428.
7. Universal Camera Corp. v. NLRB (USSCt 1951) 340 U.S. 474, 477.
8. Missouri v. Horowitz (USSCt 1978) 435 U.S. 78, 86.
9. In Smyth v. Lubbers (W.D. Mich. 1975) 398 F. Supp. 777, the court found that the narcotics violation was much more serious than "spiking the punch at an after-school meeting." However, the court did not rule on what standard of proof should be applied but only suggested that the "clear and convincing" standard may be required.
10. Gomes v. Univ. of Maine System (D.Maine 2005) 365 F.Supp.2d 6.
11. Addington v. Texas at 424-425, citing Tippett v. State of Maryland (4th Cir. 1971) 436 F.2d 1153, 1166.
12. Note, "Preponderance of the Evidence and Student-on-Student Sexual Assault." Boston College Law Review Vol. 53:1613, 1649 (2012).</sup>

Court Rejects Ban on Alcohol Advertising in College Papers

Until the U.S. Court of Appeals for the Fourth Circuit's recent decision limited its reach, the Virginia Alcoholic Beverage Control Board's (ABC) regulations banned all college newspapers from running alcohol advertising. The ban is part of a comprehensive strategy aimed at reducing underage drinking.

Many colleges and universities take a similar "environmental" or "community-level" approach to combat high-risk drinking. These interventions often enlist retailers and advertisers as allies in prevention efforts. 

But in 2006 two college newspapers affected by the regulation, The University of Virginia's Cavalier Daily and Virginia Tech's Collegiate Daily, sued the ABC, claiming the ban violated their First Amendment free speech rights.

The newspapers pointed out that a majority of their readership were over 21 (59-60% of the Collegiate Times' and 64% of The Cavalier Daily's readers). Therefore, while Virginia had a government interest in preventing underage drinking, the papers' wide distribution to people over 21 meant that the scope of the regulation was too broad.

In its decision, the Court sided with the college newspapers, acknowledging the state's interest but rejecting the regulation's overbroad reach.

"While commercial speech is protected by the First Amendment, there is a 'commonsense distinction' between commercial speech and other varieties of speech...[therefore] a regulation of commercial speech will be upheld if (1) the regulated speech concerns lawful activity and is not misleading; (2) the regulation is supported by a substantial government interest; (3) the regulation directly advances that interest; and (4) the regulation is not more extensive than necessary to serve the government’s interest."

Under this analysis, the Court concluded, "the challenged regulation fails...because it prohibits large numbers of adults who are 21 years of age or older from receiving truthful information about a product that they are legally allowed to consume...Accordingly, the challenged regulation is unconstitutionally overbroad."

The court also rejected the ABC's rejoinder that the regulation was justified by the state's more general interest in combatting abusive drinking, whether by underage or of-age drinkers. The Court cited a previous case that determined "states may not 'seek to remove a popular but disfavored product from the marketplace by prohibiting truthful, non-misleading advertisements.'"

The ruling, however, did not overturn the regulation itself. It only rejected the regulation as applied to these four-year college newspapers. As commentators have pointed out, where a paper's underage readership is the majority of its readership, the ban might still apply. A paper at two-year college, for instance, might still be subject to the regulation.

Critics of the ban have lauded the decision as a victory for free speech. Indeed, because school papers operate under tight budgets, the ban had a significant impact on the papers' finances and thus affected their primary mission of news reporting. According to estimates in The Cavalier Daily, lifting the prohibition would raise advertising revenue by 5 to 8%.

And while harm-reduction specialists may lament the loss of another valuable tool, the research is still divided on the effects of advertising on alcohol consumption. 

Study Abroad Increases Risk for Sexual Assault

Last month, University of Chicago student Michaela Cross posted a harrowing account of her study abroad experience in India. "For three months I lived...in a traveler's heaven and a woman's hell," Cross wrote. As a South Asian Studies major who had previously spent time in India, she thought she was prepared. But she wasn't.

In the short account of her travels, posted on CNN's iReport, Cross described a study abroad experience that mixed wonder and fear, "half dream, half nightmare." "I was stalked, groped, masturbated at;" she wrote, "and yet I had adventures beyond my imagination." 

In one particularly terrifying moment, she remembers "lying hunched in a fetal position, holding a pair of scissors with the door bolted shut, while the staff member of the hotel who had tried to rape my roommate called me over and over...breathing into the phone."

After returning from abroad, Cross said she was diagnosed with Post Traumatic Stress Disorder (PTSD) and has been unable to attend to classes.

"PTSD strikes me as a euphemism," wrote Cross, "because a syndrome implies a cure. What, may I ask, is the cure for seeing reality, of feeling for three months what its [sic] like for one's humanity to be taken away."

 

Students Abroad

Study abroad is an increasingly large part of undergraduate education at U.S. colleges and universities.

According to the Institute for International Education, in 2010-2011, 273,996 U.S. students studied abroad for academic credit, a slight increase from the previous year. It's likely that the numbers will continue to grow as leaders and educators tout study abroad as central to education in a global economy.

But Cross's experience and others like it illustrate that studying abroad does not come without dangers. As students plunge themselves into unfamiliar cities and cultures, they also expose themselves to new dangers.

Indeed, a recent study in the journal Psychological Trauma reports that female undergraduates are three to five times more likely to experience sexual assault while studying abroad than on a U.S. campus, where women are already at a high risk of sexual assault.

The study was the first to measure the prevalence of sexual assault in study abroad programs. Researchers asked women who had studied abroad in the past two academic years to fill out the Sexual Experiences Survey, a widely-used questionnaire for measuring the incidence of sexual assault. The results were startling:

• 83% of women reported an unwanted sexual experience, 6% an attempted sexual assault, and 4.6% a completed sexual assault.
• 87% of the nonconsensual sexual contact was committed by nonstudent local residents. 
• Women studying abroad in Africa and the Americas reported more sexual assaults than those studying in Europe. There was no information on study abroad in Asia.

The researchers speculated as to why the prevalance of sexual assault is higher for students studying abroad.

Some factors might include students' lack of familiarity with the culture and greater reluctance to go to local authorities for help, both of which make foreign students easier targets for perpetrators.
Researchers also pointed to other factors, such as the large number of study abroad programs in major cities, local stereotypes about American women, and the legal access to alcohol increasing student drinking rates.

Although the study does not offer recommendations for schools running study abroad programs, the high prevalence of sexual assault during study abroad suggests that schools may want to coordinate between their study abroad program and the campus Title IX coordinator.

At the very least, schools should review and update the information they provide students before the students arrive in a host country, establish clear procedures for reporting and handling sexual assault complaints while students are abroad, and make sure students are aware of counseling and other student health services that are available abroad and after students return.

Further Resources

The U.S. State Department has a website that provides student travelers with many valuable resources.

Work Cited

Kimble, M., Flack, W.F., Burbridge, E. (2013). "Study Abroad Increases Risk for Sexual Assault in Female Undergraduates: A Preliminary Report." Psychological Trauma: Theory, Research, Practice, and Policy, 5, 426-430.

CampusClarity Wins Gold at the Annual Stevie Awards

Think About It won a Gold Stevie Award for Best Training Site at the 11th Annual American Business Awards. Think About It is CampusClarity's online training program on sexual violence and substance abuse for undergraduates and a compliance resource for college and university administrators.

The Stevies, considered the Oscars of the business world, are open to all U.S.-based organizations. With over 3,200 entries, this year's awards were a record-breaking size. More than 320 executives from across the country judged the entries.

The award-winning Think About It addresses campus sexual violence and substance abuse through a harm-reduction model that also helps schools comply with the Campus SaVE Act and Title IX.

The program is a collaboration between CampusClarity, a service of LawRoom, and the University of San Francisco's Division of Student Life. Instructional designers, student affairs administators, and lawyers worked alongside students to develop an effective course that would speak to students' college experiences.

Think About It includes bystander intervention training, customizable campus policies and resources, state specific laws on sexual and domestic violence, social norming exercises, a comprehensive discussion of consent, and in-depth reports on student attitudes and behaviors.

More than thirty-five colleges and universities nationwide use Think About It to train their students.

Accepting the gold for Think About It were Jeremy Beckman, Chief Instructional Designer at LawRoom, and Peter Novak, Vice Provost for Student Life at the University of San Francisco.

"It means a great deal," Novak said about the award. "It allows us to further collaborate on prospective projects and to really be of service to university students across the country."

LawRoom has been a leader in employment law compliance and training since it began in 1994. It has helped private and public companies, non-profits, and government entities comply with employment regulations. This year marked the first time the company participated in the American Business Awards or Stevies.

In addition to winning gold for Think About It, LawRoom also took home silver for its online sexual-harassment training, Lenses. 

Is an Invitation to Cuddle Consent to Sex?

Jane (11:00 pm):

aww :( come cuddle with mr

Brian (11:01 pm):

I am when you get back hah

Jane (11:04 pm):

yayyy I'm a good cuddler :))

Brian (11:06 pm):

Then ill be expecting nothing less than excellence

Jane (11:10pm) :

are you a gooood cuddler

Brian (11:20pm):

I'm great you better know it

Roughly two hours after this exchange of text messages, Jane let Brian into her dorm room, where she claims he raped her.

The next day, she filed a complaint with the university.

Brian disputed Jane's account during the investigation. He admitted that they had sex but insisted it was consensual, pointing to the text messages.

The school, St. Joseph's University, was not convinced and found Brian Harris responsible for sexual misconduct, suspending him for one year.

Now Harris is suing St. Joseph's and his accuser, Jane Doe, alleging, among other things, that the university panel that heard his case did not properly consider the text messages and therefore the university is at fault for "Rendering a decision...against the clear weight of the evidence."

We won't examine the merit of Harris's legal claims here. The courts will do that. And to be clear, the assault itself was never tried in a criminal court. Harris was found responsible in a university conduct proceeding. His lawsuit is over whether that proceeding was unbiased.

But Harris's interpretation of the messages he exchanged with Jane reveals a problematic view of consent worth examining more closely.

Defining Consent

According to Harris's complaint against the school, Jane's text inviting him to "come cuddddle" is clear evidence of consent.

"In modern parlance," he explains, "the terms 'cuddle' or 'cuddling' are synonymous with, inter alia, 'sex' or 'having sex'." The complaint goes on to suggest this interpretation is "the plain meaning of the text messages." Thus Jane's invitations to cuddle are requests for and consent to sex.

In his complaint, Harris also implies that the text sent at 11:00 pm provided consent for actions that took place almost two hours later.

The problem with Harris's understanding of consent from a campus safety perspective is that it relies on neither clear words nor clear actions.  

Euphemisms like cuddle or the infamous 'hook up' are deliberately vague. While perhaps appropriate in casual conversation, these words should not be used to ask or give consent exactly because they lend themselves to misunderstandings. 

Furthermore, even if Jane had texted him 'let's have sex', Harris would still have needed to get her clear consent again several hours later when they were finally face-to-face.  Past consent does not imply future consent.

Clear words and actions should be one of the unbreakable rules students follow before they engage in any sexual activity. 

We don't want to imply that most sexual assaults are the result of miscommunication. They aren't. But Harris's complaint underscores how important it is that students have a clear concept of consent.

When Katherine Bogle was researching her book Hooking Up on college sexual culture, she discovered students held very different opinions about what the term "hooking up" meant --everything from sex to just kissing. In other words, when it comes to getting intimate with each other, students aren't always speaking the same language, and they may not even know it. A young man may think he's proposing a good night kiss, while his date thinks he's asking her to spend the night.

Starting a conversation on college campuses about terms like "cuddling," "hooking up," and other modern parlance may not resolve the ambiguity surrounding these terms -- in fact it almost certainly won't -- but it might at least force students to acknowledge it.

Further Reading

Bogle, K.A. (2008) Hooking Up: Sex, Dating, and Relationships on Campus. New York: New York UP.

Why Your Course Materials Might Violate the ADA

The Government Accounting Office (GAO) reported that in 2008 nearly 11 percent of postsecondary students had a disability, ranging from visual to motor impairments. Though administrators and faculty may be familiar with some common accommodations for disabled students such as extra time on exams and note takers, they may not know that they also need to ensure textbooks, websites, handouts, and similar course materials are accessible.

For example, roughly 100,000 to 200,000 postsecondary students have print disabilities, meaning they cannot read standard print because of physical, developmental, or learning disabilities. Legally, schools need to make reasonable accomodations for these and other disabilites that prevent students from accessing print and digital content.

The lack of accessible materials can have serious effects on a student's success, causing them to fall behind or even withdraw from courses without access to the same materials as their classmates.

Three high-profile cases settled in the first-half of 2013 illustrate the importance of making sure all course materials are accessible.

• In March, South Carolina Technical College System entered into an agreement with the Department of Education's Office for Civil Rights (OCR) over findings that its websites were not accessible to visually impaired students. It agreed to develop a resource guide of accessibility requirements, make its websites accessible, and annually review its websites and address accessibility problems.
• In May, the University of California at Berkeley reached a settlement with Disability Rights Advocates (DRA) to ensure that students with print related disabilities had access to all necessary materials. Berkeley agreed to implement policies and procedures to provide access to print materials through alternative media solutions, interim accomodations, or personal readers.
• In July, the Department of Justice (DOJ) settled with Louisiana Tech University over claims that the university used an online learning product that was inaccessible to blind students. The university will make learning technology, web pages, and course content accessible, and train its instructors and administrators on accessibility requirements. 

 

Training the Faculty

As these recent cases illustrate, the push to move course material online is creating new challenges (and opportunities) with regards to accessibility. Indeed, as more students with disabilities enroll in colleges and universities, faculty will increasingly need to be forward-thinking to ensure their textbooks, handouts, and online materials are fully accessible.

Part of the Louisiana Tech agreement explicitly requires the university to train "all individuals who provide any course-related instruction to University students (including, but not limited to, professors, instructors, other faculty, and teaching assistants)" on accommodation requirements and best practices.

Indeed, at this year's annual meeting of the National Association of College and University Attorneys, L. Scott Lisner of Ohio State University spoke to this issue:

"I used to say I didn’t want individual faculty members making individual accommodations for their students. Now I need 5,000 content creators to be creating accessible content...I don’t expect a faculty member to convert a textbook, but it is not unreasonable of them to convert a 20-page article on a webpage into an accessible format."

(Quoted in Online Accessibility a Faculty Duty at InsideHigherEd). Lisner is the president of the National Association on Higher Education and Disability.

Faculty can also help students understand their responsibilties. Unlike high schools, colleges and universities do not need to identify students with disabilities or document their needs. Thus a greater burden rests on the students' shoulders. They must identify themselves, provide documentation of their disabilities, and request accommodations. This means that new students with disabilities may not be aware of their responsibilities at the university level.

For example, the Berkeley settlement includes Alternative Media Guidelines for disabled students. The guidelines provide students with information on requesting and receiving accessible course materials.

So, as the new school year starts, here are some important questions to ask about your own campus's accommodation procedures.

• Does your school have an individual who coordinates the school’s compliance with the Rehabilitation Act and ADA, as required by law?
• Do you have professionals evaluate accommodation requests on a case by case basis?
• Do you have well-publicized grievance procedures to ensure prompt and equitable resolution of complaints?
• Are faculty members aware of their responsibility to accommodate students with disabilities? Do they know how?
• Are course websites and your school's learning management systems accessible?
• Do you reach out to students with disabilities who may not be aware of the services your school provides or how to get them?

 

Further Reading

Grasgreen, Allie. "Audiobooks Aren't Enough," InsideHigherEd. 26 July 2013.

Rothstein, Laura. "New Legal Questions About Diability Demand Colleges' Attention." Chronicle of Higher Education. 5 August 2013.

ADA best practices toolkit for websites

Joint Dear Colleague Letter on "Electronic Book Readers," Department of Education and Department of Justice

Department of Education FAQ

One Persistent Myth about College Rape That Could Be Endangering Your Campus

When forensic psychologist David Lisak began researching rape in the early 1980s, most scholars assumed acquaintance rape on college campuses was the result of misunderstandings or miscommunication. It's a myth that still persists.

But Lisak soon discovered something startling: a small number of serial offenders were responsible for a vast majority of these crimes.[1]
 
In one early study, out of a sample of 1882 male college students, 120 admitted to committing rape. Of those 120 rapists, 76 were serial offenders, who committed an average of six rapes each. None of these men had been detected or disciplined by campus authorities.

In total, 76 men admitted to 439 rapes and 49 sexual assaults. They represented only four percent of the sample, but these men were responsible for over 90% of the rapes. As Lisak explained, these numbers resembled those of convicted rapists more than "the still-prevalent image of a male college student who...mistakenly crosses the line between sexual pressure and rape" (Lisak & Miller 81).

Lisak has since suggested that each report of rape represents an opportunity "to identify a person who is very likely to be a serial offender" (Harwell & Lisak, 1), and should be followed up by a thorough investigation of the suspect.[2] Removing serial offenders from the campus environment may go a long way to reducing sexual violence on campus.

 

Other Steps

Schools could also find useful allies in other men, encouraging them to intervene when they witness sexual violence. Most men do not support beliefs and attitudes that condone sexual violence. But they are often afraid to speak up when confronted with offensive language or behavior, because they hold mistaken beliefs about their peers' attitudes and beliefs concerning gender and sex. In their desire to conform, they stay silent.[3]

Indeed according to one study, the sole predictor of men's willingness to intervene in a potential sexual assault was their perception of other men's willingness to intervene.[4]

Disturbingly, researchers also suggest that when men perceive rape-myths to be widely accepted, they report a greater "willingness to engage in sexually aggressive behavior." [5] Thus silence itself encourages harmful behavior.

Campuses should break that silence and make heard the voices of the majority of young men who oppose harmful attitudes and behaviors.

Further Reading

For more information about perpetrators of sexual violence see the CDC's page, "Sexual Violence: Risk and Protective Factors."

For more on Lisak's research see:

"Myths That Make It Hard To Stop Campus Rape," NPR, 4th March 2010"

Q&A with David Lisak, a leading expert on non-stranger rape," The Star-Telegram, 20th August 2012.

Works Cited

[1] Lisak, D., Miller, P. (2002). Repeat Rape and Multiple Offending among Undetected Rapists. Violence and Victims, 1, 73-84.

[2] Harwell, M.C., & Lisak, D. (2010). Why Rapists Run Free. Sexual Assault Report, 14, 17-18 & 26-27, esp. 17.

[3] Berkowitz, A.D. (2011). Using How College Men Fell about Being Men and "Doing the Right Thing" to Promote Men's Development. In Laker, J.A., and Davis, T. (Eds). Masculinities in Higher Education: Theoretical and Practical Considerations (pp. 161-176). New York, NY: Routledge.

[4] Fabiano, P.M, Perkins, W.H., Berkowitz, A, Linkenbach, J., Stark, C. (2003). Engaging Men as Social Justice Allies in Ending Violence Against Women: Evidence for a Social Norms Approach. Journal of American College Health, 52, 105-112.

[5] Bohner, G., Siebler, F., and Schmelcher, J. (2006). Social Norms and the Likelihood of Raping: Perceived Rape Myth Acceptance of Others Affects Men's Rape Proclivity. Personality and Social Psychology Bulletin, 32, 286-297, esp. 293. Eyssel, F., Bohner, G., Siebler, F. (2006). Perceived Rape Myth Acceptance of Others Predicts rape Proclivity: Social Norm or Judgmental Anchoring? Swiss Journal of Psychology, 65, 93-99.

Blurred Lines: How Gendered Descriptions of Drinking Hurt Campus Safety

Imagine a young man and woman, both heavily intoxicated, stumbling around a college party. What would their friends say? Would they perceive the man and the woman in the same way? And if they didn't, what might be the consequences?

According to a new study, college students are likely to describe the man as heavily intoxicated --- wasted, tanked, trashed. But they'll probably describe the woman as only moderately intoxicated -- maybe just tipsy or buzzed.[1] This is true even when the man and woman are equally intoxicated.

The Problems of Misperception

It may not seem like a big deal, but students' misperceptions about how drunk someone is carry serious consequences.

For example, the study notes that misperceptions could normalize heavy drinking. If a male student boasts that everyone was wasted at a party -- even if everyone wasn't -- other men may be encouraged to drink more when they hear how fun the party was.

These misperceptions could also lead college women to underestimate the risks associated with intoxication. For example, a young woman who thinks she's just "tipsy" may also believe she's fine to drive home, even when she's not.

Another potentially more troubling issue, however, surrounds alcohol and consent to sexual activities. Alcohol abuse and sexual violence are intimately connected. Consider these findings:

• Half of all sexual assaults are committed by men who have been drinking.
• Half of all sexual assault victims report that they had been drinking when they were assaulted.[2]
• 72% of college women who were raped were intoxicated at the time of the attack.[3]
• Each year more than 97,000 students between 18 and 24 suffer alcohol-related sexual assault or rape.[4] 

Though research suggests that campus sexual assaults are rarely just drunken misunderstandings,[5] alcohol does play a role in most campus sexual assaults. If a man thinks a severely intoxicated woman is only "tipsy," he may misjudge her ability to consent. Similarly, friends and bystanders may underestimate the risk of a situation, and let a friend do something (or have something done to her) that puts her at risk.

Researchers also speculate that men may use alcohol to justify sexual coercion.[6] By labeling himself and his friends as "wasted" or "tanked," a man absolves them of any responsibility for their actions and implicitly condones coercive behaviors that are seen as part of being drunk.

Ways Forward

Although it's not clear what causes these differences in perceptions, the researchers hypothesize that while women are encouraged to drink as much as men, they must also navigate the negative stereotypes applied to women who drink heavily. "This double standard," the researchers explain, "may lead women to apply moderate intoxication terms to themselves and to other women to downplay their level of intoxication and not violate perceived social and gender norms" (Levitt et al. 2013, 5).

For men, meanwhile, heavy drinking constitutes an important part of what it means to be a "man" in college. Thus, they want to be seen as heavy drinkers and describe themselves as such.

The study only reinforces the importance of drinking cultures on campuses. It's not just alcohol, but students' perceptions about alcohol that are problematic.

In response, student affairs specialist should consider dedicating some of their time to helping students become more aware of how they describe each other's drinking behaviors and encouraging students to discuss the relationship between drinking and gender stereotypes.

Works Cited

[1] Levitt, A., Schlauch, R.C., Barholow, B.D., Sher, K.J. (2013). Gender Differences in Natural Language Factors of Subjective Intoxication in College Students: An Experimental Vignette Study. Alcoholism: Clinical and Experimental Research. DOI: 10.1111. <accessed 20 July 2013>. See also the earlier study Levitt, A. Sher, K.J., Bartholow, B.D. (2009). The Language of Intoxication: Preliminary Investigations. Alcoholism: Clinical and Experimental Research, 33, 448-454.

[2] Abbey, A., Zawacki, T., Buck, P.O., Clinton, A.M., McAuslan, P. Alcohol and Sexual Assault. National Institute on Alcohol Abuse and Alcoholism. <Accessed 26th July 2013>. Abbey, A. (2002) Alcohol-Related Sexual Assault: A Common Problem among College Students. Journal of Studies on Alcohol Supplement, 14. Available on College Drinking. <Accessed 8th July 2013>.

[3] Mohler-Kuo, M., Dowdall, G.W., Koss, M.P., Wechlser, H. (2004). Correlates of Rape while Intoxicated in a National Sample of College Women. Journal of Studies on Alcohol, 65,37-45.

[4] College Drinking. National Institue on Alcohol Abuse and Alcoholism. Web. <Accessed 8th July 2013>.

[5] See for instance Lisak, D., Miller, P. (2002). Repeat Rape and Multiple Offending among Undetected Rapists. Violence and Victims, 1, 73-84.

[6] Abbey, A., Zawacki, T., Buck, P., Clinton, A.M., McAuslan, P.. (2004). Sexual assault and alcohol consumption: what do we know about their relationship and what types of research are still needed. Aggression and Violent Behavior, 9, 271-303.

Clery Act: Stricter Enforcement and New Requirements

After Jeanne Clery was raped and murdered in her Lehigh University dorm room in 1986, her parents fought to give other families access to information about campus safety, which they hoped would help prevent violence at colleges and universities. Out of their efforts grew the Clery Act, requiring colleges and universities to disclose statistics about crimes that occur on and around their campuses in an Annual Security Report (ASR).

Schools began submitting ASRs in 1992, but enforcement of the act has been lax. According to a 2005 National Institute of Justice report, only 37 percent of schools reported statistics in a manner consistent with federal laws. Yet Senator Arlen Specter claimed in a 2006 Senate hearing that the Department of Education (ED) had imposed only three fines in 20 years.

Now it looks like ED is getting serious about the issue of campus safety and is no longer issuing free passes to noncompliant colleges and universities.

Even as ED ramps up Clery Act enforcement, a series of high-profile complaints filed by students across the country suggest a popular groundswell against noncompliant schools. A group of student activists even hand delivered a petition to ED requesting stricter enforcement of the Clery Act and Title IX.

New Federal Requirements

Indeed, the federal government placed campus safety front and center on March 7, 2013, when they enacted the Campus Sexual Violence Elimination (SaVE) Act. The SaVE Act expanded the crime categories in a school's ASR to include:

• hate crimes based on national origin, sexual orientation, and gender identity
• domestic and dating violence
• stalking

The SaVE Act also requires schools to create policies and education programs for students and staff that promote awareness and focus on prevention of sexual violence. These education programs are aimed at preventing sexual violence and will bolster the ED's enforcement effort to bring about lasting change.

Given the tragic consequences of sexual violence, helping students stay safe is a goal we all share and support.