New “Enough is Enough” Policy Seeks to Address Deficits in Equity Grievance Process

Michael Johnston, Charles A. Dana Professor of Political Science

The new “Enough is Enough” law addressing sexual violence on college campuses will go into effect in the beginning of October. This comprehensive and prescriptive law should change the way colleges deal with sexual assault on campus, including here at Colgate. Enough is Enough both strengthens colleges’ responses to sexual violence and adds numerous important due process protections currently not afforded in our Equity Grievance Process (EGP). 

For new Colgate community members and those with short memories, we the authors, both resigned from the University Student Conduct Board last year in protest of a disciplinary regimen we felt jeopardized student rights (a search of last year’s Maroon-News will yield the editorials we wrote to explain the causes of our concern, as well as the administration’s response). Given our experiences, we were pleased to find that this new legislation mandates a fairer process and provides critical protections for both complainants and respondents, at least on the EGP side of the disciplinary apparatus. 

But rights are useless unless you exercise them. We write this editorial to make sure all members of the Colgate community – students, staff, and faculty – are aware of the law and the protections it provides. We focus here on those aspects of the law that require changes in the way the EGP operatess.

The new Enough is Enough legislation requires:

 “Presumption the respondent is ‘not responsible’ until a finding of responsibility is made.” 

This language echoes the “innocent until proven guilty” presumption in criminal law. We highlight this provision because it underscores the fact that an accusation is not the same as responsibility. Any accusation made against another member of the community needs, in the language of Enough is Enough, to be “investigated and adjudicated in an impartial, timely and thorough manner” before any responsibility can be assigned. There are currently two lawsuits against Colgate filed by students expelled by the EGP; both the Plaintiffs allege they were not afforded this basic right. 

“For the respondent, accused and reporting individual to be accompanied by an advisor of choice who may assist and advise a reporting individual, accused or respondent throughout the judicial or conduct process including during all meetings and hearings related to such process.” 

If you are called to speak with Valerie Brogan, the Campus Safety and Title IX Investigator, you do not have to go alone or with an administrator assigned to accompany you by Colgate. Enough is Enough guarantees that, even for an initial meeting, you have the right to bring someone of your choosing with you, including a lawyer or other trusted advisor.  Given that some allegations investigated by Campus Safety are criminal offenses, it is important to have a legal advisor; students have been referred to the criminal justice system and jailed after being interviewed at Campus Safety.

“Notice to a respondent describing the date, time, location and factual allegations concerning the violation, a reference to the specific code of conduct provisions alleged to have been violated, and possible sanctions.” 

According to both lawsuits, respondents have not been given information about the “factual allegations concerning the violation” before being questioned by Brogan: the first lawsuit alleges the respondent was kept at Campus Safety for seven and a half hours during his initial interview without being informed of the charges against him, and the second one claims that the respondent was unaware of the allegations during a five-month investigation. Knowing the facts of the charges, not just the possible policy violation, is an important due process protection; insist upon it.

“Both the reporting individual and respondent can contest the imposition of a no-contact order or interim suspension and submit evidence to support the request.”

Colgate has admitted in its court filings from the first lawsuit that it imposed a no-contact order between two students in a consensual relationship when neither requested it (see Faiaz v. Colgate University). Enough is Enough guarantees that if either party believes a no-contact order is inappropriate, it can be contested.

A Complainant has the right to “Make a decision about whether or not to disclose a crime or violation and participate in the judicial or conduct process and/or criminal process free from pressure by the institution” and to “withdraw a complaint or involvement from the institution at any time.” 

A reporting individual has control over the complaint process and can withdraw a complaint or refuse to continue his or her involvement with the university’s process at any time. The female student in the first lawsuit claimed she was pressured to provide a statement by Brogan and was never told how her statement would be used or informed that she had the option not to submit a statement (once again, see Faiaz v. Colgate). Enough is Enough makes it clear that such pressure is unlawful and gives more control to the reporting individual. 

“Access to at least one level of appeal of a determination before a panel which may include one or more students that is fair and impartial.” 

EGP decisions are made by majority rule, meaning that just two faculty/staff members make the determination of responsibility for sexual misconduct, a decision that can be life altering for either party. This is why we welcome Enough is Enough’s guidance that appeals, which can be filed by either party, be handled by a panel, preferably one with students. However, the faculty were informed that these “panels” would consist of only two people: Dean of the College Suzy Nelson and a faculty/staff EGP member. While this is twice the number of people who currently decide appeals, we don’t think such a “pair” or the exclusion of students across the board is in line with the spirit of Enough is Enough as written.

Ultimately, the goal of Enough is Enough is to decrease the amount of sexual violence on campuses, while stipulating basic protections so that no one is treated unfairly in the pursuit of that goal. If you find yourself in the unenviable position of reporting or responding to an accusation of sexual misconduct, make sure you know your rights under Enough is Enough and demand that its provisions be followed. It’s now the law.