Our nation was founded on two self-evident truths: All are created equal, and all are entitled to basic freedom. Yet, there is always a degree of tension between equality and freedom.
For example, equality prohibits discrimination against gays and legitimizes same-sex marriage, but freedom prohibits imposing a particular political orthodoxy and requires respect for those who disagree on religious grounds. Similarly, in the context of student sexual assault on a university campus, equality requires the institution to remedy sex discrimination against the victim/survivor by disciplining the perpetrator; but freedom requires extensive due process protections for the alleged perpetrator.
Unfortunately, when confronted with sexual assaults on campus, educational institutions frequently have ignored equality. Following the decline of the in loco parentis doctrine, universities’ respect for freedom has led them to tolerate a student-life culture that emphasizes heavy drinking and casual sex.
Such an environment does not prevent sexual assault. Indeed, it often indirectly encourages it.
When students have come forward with allegations of sexual assault, campus officials often failed to: (1) provide adequate psychological counseling; (2) grant accommodations, such as changes in class schedule or housing; or (3) prevent retaliation by the alleged perpetrator’s supporters.
If a victim/survivor wished to pursue justice against an alleged attacker, the university often simply referred him or her to the criminal justice system, where prosecutors would not pursue ambiguous cases. Moreover, as the continuing controversy over the relatively light sentence given to the Stanford swimmer demonstrates, many doubt the effectiveness of the criminal justice system in dealing with these issues even when there a finding of guilt beyond a reasonable doubt.
If the school initiated student disciplinary proceedings, it was often a horrific experience for the victim/survivor. Sadly, at some institutions, the alleged perpetrator’s status as an athlete or the child of a wealthy donor apparently influenced the decision to pursue discipline or the sanction involved.
Given the inadequate responses of institutions to the problems of sexual assault, advocates and policy makers justifiably demand that universities do more. Quite simply, public schools have a moral and constitutional obligation to change the culture so that sexual assault is less common, to support victims/survivors, and to facilitate victims’/survivors’ pursuit of justice.
Trustees, administrators and faculty members must do more.
Yet while there is a broad consensus that equality requires this, some might believe public institutions must choose between equality and freedom. They may believe that pursuing justice for victims/survivors requires abandonment or a significant diminishment of due process protections; or that protecting the rights of accused students means further trauma for victims/survivors or, worse, allowing rapists to go free.
This is a false choice. Public universities do not have to choose between equality and freedom.
To the contrary, the Constitution requires the institution to honor both principles.
First, public institutions must honor Equality. In the context of sexual assault involving students, it is not enough for the institution to prohibit sexual assault or discipline the perpetrators; institutions are required to take measures to prevent sexual assault and lessen its impact on individual students.
Specifically, public universities must:
- change the culture
- support victims/survivors, and
- facilitate victims’/survivors’ pursuit of justice
At my institution—the University of Kentucky—we are changing the culture, supporting the victim/survivors and facilitating the pursuit of justice.
Our Attitudes Toward Safety (“CATS”), which is mandatory for all students, arguably represents the best and most comprehensive model for understanding campus culture. Our Green Dot program, which is a national model, empowers individual students take steps to prevent incidents where both parties are intoxicated or one individual appears to be taking advantage of another.
Our Violence Intervention and Prevention (“VIP”) Center provides an array of comprehensive support services for victim/survivors even if they choose not to make a formal report. When victim/survivors courageously pursue justice, we ensure their privacy even to the point of having to litigate against the Kentucky Attorney General and our student newspaper.
Second, public institutions must honor Freedom by providing due process. Since the landmark decision in Dixon v. Alabama State Board of Education, it has been clear the Constitution requires due process before a public university expels a student or imposes a lengthy disciplinary suspension.
While the exact contours of due process depend upon the context, due process in the sexual assault context requires (1) a strict separation of investigative, prosecutorial, adjudication, and appellate roles; (2) a hearing with adequate procedural safeguards; and (3) meaningful appellate review.
At the University of Kentucky, our process, which I redesigned at President Eli Capilouto’s direction, satisfies all three aspects. The investigative, prosecutorial, adjudicative, and appellate functions are all separate and distinct. Different attorneys serve as investigators, prosecutors, hearing officers (retired judges or distinguished law professors), and as chair of the appellate tribunal. Non-lawyers (administrators or faculty members) make the decision to prosecute, serve as the jury for the hearing, and round out the appellate tribunal.
Our hearings include: Passive participation by counsel (lawyers can advise but not speak directly), access to all inculpatory and exculpatory evidence, some form of cross-examination, and requires the university to bear the burden of proof. Our appellate tribunal—a law professor and two non-lawyers—reviews findings of fact for clear error and legal conclusions de novo.
In today’s world, sexual assault will always be a reality on college campuses. Yet, this sad reality does not mean that institutions must choose between equality and freedom.
Rather, it means that the universities must find a way to respect both.
That is our goal at the University of Kentucky. It should be the goal of all academic institutions.
William E. Thro is General Counsel of the University of Kentucky. He writes in his personal capacity and his views do not necessarily reflect the views of the University of Kentucky. This essay was adapted from his May, 2016 article in the Regent University Law Review. Readers’ comments are welcome.