From Tenure to 'Yes Means Yes,' State Lawmakers Delve into University Policies

Shirts© AP

Students at Converse College in Spartanburg, South Carolina, decorated shirts as part of the Clothesline Project, with each shirt representing the personal experience of someone who has dealt with sexual assault or violence against women. This year, 26 states considered legislation to change universities’ sexual assault policies. (AP)

This story was updated to clarify that it was an alleged sexual assault at Columbia University, not New York University, that attracted national attention.

Chancellors, professors and students across the country noticed: During this year’s legislative sessions, state lawmakers frequently delved into policy matters traditionally left to universities themselves.

Twenty-six states considered legislation to change universities’ sexual assault policies and campus adjudication processes and 17 debated bills that would allow people to carry a concealed weapon on college campuses.

Some state debates went beyond campus safety.

In Wisconsin, Republican Gov. Scott Walker briefly proposed changing the mission statement of the public university system to have it focus on meeting “the state’s workforce needs” rather than improving the human condition or promoting the search for truth.

And in Kansas, two state lawmakers who were reluctant to tell where the idea originated advocated a bill that would stop university professors from using their university titles when writing letters to the editor on some political topics.

“There are many emerging issues that lawmakers are getting into that they haven’t gotten into in the past,” said Tom Harnisch, director of state relations for the American Association of State Colleges and Universities.

Yes Means Yes 

As alleged sexual assaults at the University of Virginia and Columbia University drew national attention, more legislators felt the need to evaluate schools’ track records and change the campus adjudication processes.

Colorado enacted a law that requires colleges to provide students with access to rape kits. New Jersey considered a bill that would have let the state attorney general fine schools that didn’t properly investigate or respond to a student’s report of sexual assault. The Virginia Legislature voted down a bill that would have allowed students to be represented by a lawyer throughout the campus adjudication process.

This year, New York followed California’s 2014 decision by enacting affirmative consent legislation — also known as “yes means yes” — that requires college students at New York’s public and private universities to explicitly consent to any sexual activity.

The law, which Democratic Gov. Andrew Cuomo signed Tuesday, differs from the previous “no means no” standard in that both parties must agree to any sexual activity, from kissing to intercourse, before it happens. Previously, consent was assumed as long as an action wasn’t interrupted with a no or physical resistance.

“It removes the burden for survivors to prove they said no, and that’s helpful when someone is drunk, incapacitated or asleep when something happened,” said Sofie Karasek, a sexual assault survivor and University of California, Berkeley, student who co-founded the national group End Rape on Campus.

Although there is some gray area in determining how intoxicated a person must be to no longer consent, supporters of the New York law are hopeful that incoming students being trained on the policy will abstain if they have any doubts about whether the other person is able to agree to sex.

“I definitely feel it will clarify for everyone the rules of engagement,” said Democratic state Assemblywoman Deborah Glick, the bill’s sponsor.

In an effort to alert other colleges if the student seeks to transfer, the New York law also establishes a process for marking the college transcript of a student found responsible for sexual assault. It creates a Bill of Rights for victims and the accused, including a right to a speedy investigation and hearing and a right to be separated from the accused. Accused students can appeal if they feel being moved to another dorm or class would be too disruptive for them.

While the idea of affirmative consent has been raised in other states, no other law has passed yet. In Connecticut, for example, the Senate passed a “yes means yes” measure, with just one vote against, but the bill stalled in the House.

“It’s odd to have something be a matter of state law that’s only subject to college students,” said Republican Sen. Joe Markley, the one vote against the Connecticut bill. “To put everything we recognize as rape into an academic procedure doesn’t make sense to me. It should lead to a criminal charge, not something left to university governance.”

In Virginia, lawmakers stepped in with a new law on how schools should handle sexual assault cases after a November Rolling Stone story told of a 2012 gang rape at a fraternity house. Although the story was later retracted after the allegations unraveled, Republican Sen. Richard Black thought it was important that police be brought into sexual assault cases on campuses.

The Virginia law that Black sponsored puts a law enforcement officer on each state school’s Title IX committee, which is responsible for handling review of sexual assault cases per the federal statute of the same name. Title IX requires gender equity in every educational program that receives federal funding and requires schools to promptly investigate any complaint of sexual discrimination, harassment or violence.

The law enforcement officer on the committee is required to report any felony-level incidents to local authorities for investigation. Black, a Republican and career Army JAG prosecutor, said the law would bring police into a process that otherwise usually depends on a victim’s willingness to report to law enforcement.

However, many victims of sexual assault are hesitant to go to the police, Karasek said, because “they feel they are choosing between two broken systems, but the police process is more traumatic.”

“The campus adjudication process, as flawed as it is, is more helpful to survivors because they can get an assailant removed from campus,” Karasek said, while prosecutors may accept plea bargains for lesser charges. Even with a conviction, schools do not always take action against the student outside of their adjudication process.

In California, Assemblyman Das Williams, a Democrat, proposed a bill that would require a minimum two-year suspension for those found guilty of rape, similar to the consequences students face when violating drug policy or cheating on a test. The bill has passed the Assembly and is pending in the Senate.

“We saw at the campus level sometimes humiliatingly low level of punishment for those found responsible of rape,” Williams said, adding that while the bill may be a deterrent, he hopes it will encourage people to report incidences so they can get help and justice.

But a coalition of state and national women’s and sexual assault groups sent a letter to state legislatures asking them to hold off on enacting drastic changes to campus adjudication processes, saying the changes could harm those making sexual assault accusations.

“Legislatures are going out on their own trying to fix things without going to the victim community and the higher education community about how to fix the problem,” said Colby Bruno, senior legal counsel for the Victim Rights Law Center, which provides legal help to victims of sexual assault.

Karasek, however, said legislatures are stepping in because universities can be reluctant to change, with some schools more interested in covering up complaints to protect their reputations than in changing the process for addressing allegations.

“Individual campuses can be really hard to change, and schools can try to drag out the process as long as possible because students are only there for four years,” she said.

Guns on Campus

Since the Virginia Tech shooting in 2007, various states have considered legislation to allow students and faculty to carry concealed weapons on campus. While the idea is consistently opposed by most university administrators and professors, supporters argue it extends an existing right to a place where people who are armed could help protect themselves and others.

This year, Texas joined the seven other states (Colorado, Idaho, Kansas, Mississippi, Oregon, Utah and Wisconsin) that allow concealed carry on campuses.

“College students have a higher than normal stress level, higher suicide attempt rate, higher alcohol abuse rate — how could anyone not know it’s bad to add a gun to that mix?” said Lynn Tatum, a professor at Baylor University and a past president of the Texas chapter of the American Association of University Professors.

In Kansas, universities are determining how to implement a law passed in 2013 that allows people to carry concealed firearms in any public building, including universities, unless the building provides security and screens for weapons.

The state this year passed a separate law granting those not restricted from gun ownership the right to carry a hidden firearm, which means they no longer need to obtain a permit or undergo training to carry a concealed weapon.

“You really ought to allow law-abiding citizens to provide for their own protection if no one else is,” said Republican Sen. Forrest Knox, who sponsored the 2013 law.

While unwavering in his argument that guns will make college students safer, Knox said he has concerns about guns being stored improperly in dormitories. He supports schools’ ability to regulate that. He does not, however, think guns will have the chilling effect in a classroom that many professors say it will.

“At public meetings I constantly asked, ‘How many people since they came here wondered who in this room has a gun?’ and invariably, the answer is none. The average student is not thinking about it,” Knox said.

Mike Williams, a journalism professor and president of the University of Kansas Senate, which handles internal governance of the school, said the challenge now is to “make the place feel safer even if it’s not safer.”

But with the current makeup of the Kansas Legislature, Williams said that it doesn’t serve the university to be too vocal in opposing the policy, particularly given the stereotype many lawmakers may have of professors.

“There’s definitely a tension right now between higher education in general and the state,” Williams said, referencing how a tweet from a journalism professor had some Kansas legislators ready to defund the school. “To become very anti-gun would be just what they would expect from a bunch of liberal professors.”

Baylor’s Tatum said the bill in his home state of Texas was not well thought through.

Beyond the improbability that “an untrained 21-year-old could take out live shooters,” he said universities must now find ways to provide gun storage for campus hospitals and labs with various chemicals and nuclear agents. They must also train campus police to deal with situations where there may be multiple shooters.

“We as academics are trained to see both sides of an issue,” Tatum said, “but I can’t see the rationale for this beyond just the ideological, ‘guns equal freedom.’ ”

How Involved Is Too Involved?

Gov. Walker has said any proposed change in the University of Wisconsin’s mission statement was a drafting error. But his proposal to remove the state’s tenure policy from state law was no mistake. And the move has drawn criticism from all levels of the university system.

Nick Hillman, a professor at the University of Wisconsin, Madison, said the proposal could dismantle the protection that tenure offers professors — of not being fired without just cause — that was designed to let scholars pursue even unpopular ideas without fear of reprisal.

The proposal would turn tenure policy over to the state’s board of regents, most of whom are appointed by the governor and confirmed by the legislature. It would allow the regents to lay off tenured professors if departments or college majors are eliminated.

Sen. Sheila Harsdorf, a Republican, said the measure is meant to model other state systems where universities handle the inner workings of tenure themselves.

But some academics wonder whether the state has ulterior motives.

“Would they try to use this language as a backdoor to let people go for saying controversial things?” said Joe Gow, chancellor of the University of Wisconsin-La Crosse.

State Senate Majority Leader Scott Fitzgerald, a Republican, suggested in an interview with Milwaukee television station WISN that the move could provide a way to fire faculty who rub university leaders the wrong way.

“Let’s get [tenure] out of statute. The idea that somebody should be completely protected from any type of criticism when they make public comments or even the way they handle themselves on campus is just not sitting well with many of us,” he said.

Gow said the current group of Wisconsin legislators is far more interested in the details of university administration than any other group he’s seen.

“It’s concerning when politicians come in and are trying to change things that have been established over hundreds of years,” Gow said. “I’m proud of my campus. We do really well, and I really don’t feel there’s anything here that is in great need of reform.”

Markley, in Connecticut, said legislatures have, with the best of intentions, crossed the line in terms of regulating universities. He said states have already done a good job of selecting qualified people to run the university systems.

“Why set up such a structure under tremendous expense? Having invested in such bureaucracy, why continue to take decision-making onto ourselves?”

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