The answer lies in the different roles of the campus
administrative process and the police/prosecutorial process, said W. Scott
Lewis, partner in the National Center for Higher Education Risk Management
Group and a co-founder of ATIXA, the Association of Title IX Administrators,
NYC.
Much of the process that campuses undertake is akin to that
of an employer. “It’s kind of like any other workplace. If you break the rules
of the workplace, it might also be a crime, but you might also get fired,”
Lewis said.
Higher ed institutions have an administrative process they
must go through, like an employer does. But with sexual assault, additional
federal law kicks in because of the possible discrimination on the basis of
gender and the possible denial of an educational program.
The idea of a school being involved in the investigation and
adjudication of a crime isn’t new. “The dilemma is that these are very
difficult cases. The reason you can’t leave [sexual assault cases] expressly to
law enforcement is the same reason you couldn’t leave any of these other
violations to law enforcement,” he said.
Law enforcement, as an arm of the district attorney,
investigates crimes to see if they can be proven beyond a reasonable doubt.
Administrators, like civil courts, rely on a preponderance of evidence, and the
stakes are lower. The accused doesn’t have his or her freedom at stake; the
worst penalty is getting fired or kicked out of school.
One of the main problems college administrators face with
sexual assault cases is that they aren’t specifically trained for the
investigations, and may not understand differences between the impartial
process and a prosecutorial process, or victim-blaming and accused-blaming, for
example, Lewis said.
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