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Federal Liberals’ call for national campus sex-assault policy comes with ‘unparalleled’ note of menace

The National Post with Kerri Froc 28 February 2018

As universities applauded the federal government for supporting higher education in Tuesday’s budget, it was easy to overlook the relatively modest $5.5 million set aside to “harmonize” campus sexual violence policies over five years.

But the threat to withdraw federal funding as early as next year from schools not yet “implementing best practices” carried a note of menace, experts say.

“You can be sure this made all universities across Canada pay attention,” said Kerri Froc, assistant professor of law at the University of New Brunswick, who studies constitutional law as it relates to women.

Alex Usher, president of Higher Education Strategy Associates, went further, saying the language the government used “sounds like they want people to think they could nuke them,” by clawing back federal research funding or even student aid. “It would be unparalleled,” he said.

It duplicates efforts several provinces have made in recent years to legislate the problem by requiring universities and colleges to create sexual violence policies. And it places the federal government at the centre of work toward a new national policy in education, a provincial mandate.

If provinces come to different conclusions about how the universities ought to handle sexual violence complaints, Usher said, “what business is it of the feds to harmonize them?”

The federal government offered little clarity on these questions.

“There is a need for federal leadership in this area, to support a harmonized national approach and dialogue, leading to strategies to address sexual violence, to create safe campuses, and to remove the stigma from reporting or seeking support following sexual violence,” the budget reads.

Status of Women Canada, which will receive the funding to run the harmonization process, declined to comment, and referred questions to the Department of Finance, which declined to identify exactly what funding could be withdrawn.

“As noted in the budget, the withdrawal of federal funding will be considered starting in 2019. There are no further details at this time,” a spokesman said.

There has been a crisis of confidence in the response of universities and colleges to campus sexual violence. Some schools have had cases heard by panels that include other students, for example, often with little formal training, experience, or guidance.

Until recently, most schools had no policy, and sexual violence complaints were resolved informally, if at all.

Ontario, Manitoba and British Columbia, for example, have recently passed legislation requiring schools to create detailed sexual violence policies. They are similar in purpose to Title IX, a 1972 American civil rights law protecting against discrimination based on sex in education. In 2011, it was controversially clarified to impose a duty on schools to take “immediate and effective steps to end sexual harassment and sexual violence,” although that has recently been reversed.

Usher said the language in the budget “is reminiscent of Title IX language, and I don’t think that’s a coincidence.” It seems to imply that “we have some big levers to pull if we want to,” which could mean research or aid money, he said.

Froc said she saw the threat as a way for the government to tell universities to “get your house in order.”

That demand can cut both ways, she said. It gives a motivation to recalcitrant institutions to bring themselves in line with a new national standard, she said. But it could also hinder innovation at some school that wants to be radically progressive. She also expressed concern that, if a clawback on research funding was ever implemented, it might end up punishing some of the people sexual violence policies are meant to protect, namely female researchers and professors.

Daniel Del Gobbo, who researches the use of alternative dispute resolution in campus sexual violence cases at the University of Toronto Faculty of Law, said this is a welcome initiative because the various policies already drafted need harmonization.

He said the legislation has seemed to give “broad discretion” to schools to handle complaints as they see fit under the laws. “Unsurprisingly then, the content of campus sexual violence policies varies widely from school to school.”

Shared guidelines are needed, he said, on issues like the definition of consent, support for complainants, training on intervention and sensitivity, and rules of procedural fairness.

He said he expects any attempt to harmonize these issues will be “extremely challenging.” For example, there is controversy over the use of restorative justice, which he supports on the grounds that research shows it can reduce recidivism and promote cultural change.

“We understand that many schools already have policies and frameworks,” the Finance spokesman said.

“Status of Women is expected to build on much of what information already exists by leading consultations with stakeholders, including provinces and territories, to bring together best practices and existing policies, which will ultimately shape the foundation of a framework.”