The bipartisan Campus Accountability and Safety Act (“CASA”)1Here is a summary of CASA’s provisions: CASA Summary(The above summary is available at https://www.congress.gov/ bill/113th-congress/senate-bill/2692.) is expected to be up for a vote sometime in 2015. Especially now that we have a Republican-controlled Congress, we need to make some additions to this legislation so that it makes an impact in all the right places. This is one addition that I view as critically necessary. It ensures that all students — who (as tuition rates make clear) are tendering significant sums of money to these institutions — are providing their informed consent to the possibility of being exposed to their school’s grossly unfavorable (and, in many instances, disturbingly unfair) adjudication policies and procedures should they ever be accused of sexual misconduct.

If the prospective student has been paying any attention to what has been occurring at colleges across the nation, choosing to attend an institution that takes procedural fairness to the accused seriously is anything but a trivial decision for him or her. If accused of sexual misconduct, the outcome of such proceedings can affect not only his or her standing at that institution, but also the ability, as a practical matter, to be admitted to other educational institutions. It can also impact future employment opportunities, and thus earning potential. It is not an exaggeration to say that such matters can follow a person throughout the remainder of his or her life.2I am, of course, repulsed by the utter lack of due process provided to the accused by colleges’ sexual misconduct policies and procedures, in which they basically take all of the protections and concepts of adjudicatory fairness found in our Constitution and our laws, then say “fuck all of those silly things” in favor of something which can only be described as a Star Chamber redux. Nonetheless, that topic is beyond the scope of this article, which is intended only to address the matter of ensuring that students are fully informed about these Orwellian policies and procedures before they tender tens or hundreds of thousands of dollars to these institutions that can expel them so easily and swiftly. One can only hope that requiring colleges to make such disclosures explicitly in the manner suggested herein will, in addition to empowering students to affirmatively say, “Wait a second, these terms are simply unacceptable to me,” also self-shame institutions whose policies demonstrate such little regard for American notions of fairness and due process.

Because, sadly, the threat of expulsion for sexual misconduct is now very real to even the most benign of students,3See, e.g., Emily Yoffe, The College Rape Overcorrection, Slate (Dec. 7, 2014), [Hover for full URL] (“Drew Sterrett couldn’t know that when his friend slipped into his bottom bunk late one night in March of his freshman year, she was setting off a series of events that would end his college education.”). a college’s sexual misconduct adjudication policies and procedures ought to be regarded by the law as material to any reasonable person in deciding whether (s)he ultimately wishes to enter into a contractual arrangement for educational services with a particular institution. And, to ensure that colleges meet their legal duty of disclosing all material terms of the educational services contract they enter into with each of their students (so that their students can give their informed consent to such, shall we say, “collegiate relations”), I propose that federal law require these institutions to affirmatively disclose their sexual misconduct adjudication policies and procedures to each incoming (i.e., new) student prior to the acceptance of his or her first tuition payment. Each institution should also be required by law to adequately notify all of its current students of any change(s) to its sexual misconduct policies and procedures within a certain time period after its official adoption of such change(s).

In addition to accomplishing the aforementioned policy objectives, an effective regulatory framework should provide unambiguous directions for covered educational institutions to follow in making the required disclosures, while at the same time avoiding any needless micromanagement of their administrative, logistical, or other internal affairs.4The idea here is that colleges need not present this information in a standardized manner, so long as the institution does not fail to disclose any information that it is required to disclose. (Requiring standardization in the precise format of the required disclosures would, if only because of the variation among the policies and procedures of individual institutions, be impractical at best.) I therefore propose that the Act include the following text:

To address prospective students (i.e., accepted applicants):

Each institution of higher education that receives funds or any other form of financial assistance under any Federal program, including participation in any federally funded or guaranteed student loan program, shall fully disclose to all accepted applicants, no later than 30 days prior to the deadline for any enrollment decision or tendering of the first tuition payment (whichever is earlier), that institution’s rules, policies, and procedures, in their entirety, concerning any adjudication and/or disciplinary process it utilizes with respect to an allegation(s) of sexual misconduct by a student.

To address current students at the time the law is enacted:

Each institution of higher education that receives funds or any other form of financial assistance under any Federal program, including participation in any federally funded or guaranteed student loan program, shall fully disclose to all current students, within 120 days of the effective date of this law, that institution’s rules, policies, and procedures, in their entirety, concerning any adjudication and/or disciplinary process it utilizes with respect to an allegation(s) of sexual misconduct by a student. Such disclosures shall be made by mail to each student.

To address changes to an institution’s policies:

Any change (regardless of materiality) to any rules, policies, and/or procedures required to be disclosed under this Section shall be disclosed to all current students by mail within 14 days of the adoption of such change, and shall also be posted prominently throughout the institution.

Let’s consider this to fit under the “Campus Accountability” part of CASA.

Tell your Senators and Representatives that it’s something you want to see included in the final version of this legislation. Do it now.

Footnotes   [ + ]

1. Here is a summary of CASA’s provisions: CASA Summary(The above summary is available at https://www.congress.gov/ bill/113th-congress/senate-bill/2692.)
2. I am, of course, repulsed by the utter lack of due process provided to the accused by colleges’ sexual misconduct policies and procedures, in which they basically take all of the protections and concepts of adjudicatory fairness found in our Constitution and our laws, then say “fuck all of those silly things” in favor of something which can only be described as a Star Chamber redux. Nonetheless, that topic is beyond the scope of this article, which is intended only to address the matter of ensuring that students are fully informed about these Orwellian policies and procedures before they tender tens or hundreds of thousands of dollars to these institutions that can expel them so easily and swiftly. One can only hope that requiring colleges to make such disclosures explicitly in the manner suggested herein will, in addition to empowering students to affirmatively say, “Wait a second, these terms are simply unacceptable to me,” also self-shame institutions whose policies demonstrate such little regard for American notions of fairness and due process.
3. See, e.g., Emily Yoffe, The College Rape Overcorrection, Slate (Dec. 7, 2014), [Hover for full URL] (“Drew Sterrett couldn’t know that when his friend slipped into his bottom bunk late one night in March of his freshman year, she was setting off a series of events that would end his college education.”).
4. The idea here is that colleges need not present this information in a standardized manner, so long as the institution does not fail to disclose any information that it is required to disclose. (Requiring standardization in the precise format of the required disclosures would, if only because of the variation among the policies and procedures of individual institutions, be impractical at best.)
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