Title IX of the Education Amendments of 1972 to the 1965 Higher Education Act, the Clery Act of 1990, the Campus Sexual Assault Victims’ Bill of Rights of 1992, the Violence Against Women Act of 1994, the 2011 “Dear Colleague Letter” from the DOE, the 2013 DOJ/DOE “Blueprint Letter”, the Campus SaVE Act of 2013, and the proposed Campus Accountability and Safety and Teach Safe Relationships acts – have or will dramatically expand the purview and power of the DOE, particularly its Office of Civil Rights, to regulate America’s colleges and universities in regard to sexual harassment and sexual assault in ways that are not compatible with fundamental constitutional rights, that violate previous federal court rulings, and that create a profound obstacle to the primary function of institutions of higher education: higher education.
The path to higher education has become increasingly narrowed and made more labyrinthine by persistent pressures from the left end of the political spectrum, just as the path to my outhouse has narrowed this winter by prevailing winds from the left coast, creating an overarching obstruction to one of the most essential human needs.
The Road to Hell is Paved With Good Intentions
The Higher Education Act of 1965
The Higher Education Act of (HEA) was signed into United States law on November 8, 1965, as part of President LBJ’s Great Society domestic agenda. The law was intended “to strengthen the educational resources of our colleges and universities and to provide financial assistance for students in post-secondary and higher education”. It increased federal money given to universities, created scholarships, gave low-interest loans for students, and established a National Teachers Corps.
The Act was reauthorized in 1968, 1971, 1972, 1976, 1980, 1986, 1992, 1998, and 2008, and extended through 2015 for further debate and deliberation.
Title IX, Education Amendments of 1972 (renamed the Equal Opportunity in Education Act in 2002)
Senator Birch Bayh of Indiana, who was its author and chief Senate sponsor, addressed its purpose on the floor of the Senate:
“While the impact of this amendment would be far-reaching, it is not a panacea. It is, however, an important first step in the effort to provide for the women of America something that is rightfully theirs – an equal chance to attend the schools of their choice, to develop the skills they want, and to apply those skills with the knowledge that they will have a fair chance to secure the jobs of their choice with equal pay for equal work”.
1972 was the same year that the Equal Rights Amendment was passed and sent to the states for ratification (which did not happen by either the original or later extended deadline).
For the first twenty years, Title IX enforcement was focused almost exclusively on women’s access to collegiate sports. In the 1990s, the focus began to shift to sexual harassment.
In Davis v. Monroe County Board of Education (1999), the Supreme Court ruled that a school could be liable under Title IX if it had actual knowledge of sexual harassment and acted deliberately indifferent. The Court clarified that the harassment must be “so severe, pervasive, and objectively offensive that it effectively bars the victim’s access to an educational opportunity or benefit.”
In guidance issued in 1997 and revised and expanded in 2001, the DOE Office of Civil Rights (OCR) emphasized that educational institutions must take reasonable steps to prevent and eliminate sexual harassment as a condition of receiving federal funds.
Title IX includes not a word about either sexual harassment or sexual violence, but was focused exclusively on equal access to education. The Court, however, ruled that severe or pervasive sexual harassment (but not likely a single one-on-one peer incident) could interfere with equal educational opportunity.
The Clery Act of 1990
The Jeanne Clery Disclosure of Campus Security Policy and Campus Crime Statistics Act or “Clery Act” is a federal statute passed in 1990 that requires all colleges and universities that participate in federal financial aid programs to keep and disclose information about crime on and near their campuses. Compliance is monitored by the US DOE, which can impose civil penalties up to $35,000 (raised to $150,000 in the proposed Campus Accountability and Safety Act, with fines up to 1% of a school’s annual budget) for each infraction and can suspend institutions from participating in federal student financial aid programs.
The law was named for Jeanne Clery, a 19-year-old Lehigh University freshman who was raped and murdered in her campus residence hall in 1986. The Clery Act was originally known as the Crime Awareness and Campus Security Act.
Due to many reinterpretations by the DOE over the years, today’s campus administrators are required to track and disclose a number of incidents which don’t rise to any definition of crime used in the FBI’s Uniform Crime Reporting (UCR) or National Incident-Based Reporting System (NIBRS).
The Violence Against Women Act of 1994
There are no US federal laws relating to sexual assault. This is due to the Supreme Court ruling in US v. Morrison (2000) which overturned the clauses in the Violence Against Women Act (VAWA) which allowed women to sue their attackers in a Federal court.
The 1994 Act created a federal civil remedy for victims of gender-based violence, even if no criminal charges had been filed against the alleged perpetrator of that violence.
In the fall of that year, at Virginia Tech, freshman student Christy Brzonkala was allegedly assaulted and raped repeatedly by fellow students Antonio Morrison and James Crawford. College proceedings failed to punish Crawford, but initially punished Morrison with a suspension ( later struck down by the administration). A state grand jury did not find sufficient evidence to charge either man with a crime. Brzonkala then filed suit under the Violence Against Women Act.
In a 5-4 decision, US v. Morrison invalidated the section of the Violence Against Women Act that gave victims of gender-motivated violence the right to sue their attackers in federal court. Chief Justice Rehnquist, writing for the majority, held that Congress lacked authority, under either the Commerce Clause or the Fourteenth Amendment, to enact this section.
DOE Dear Colleague Letter of 2011
In April of 2011, largely in response to a 2010 report issued by the Center for Public Integrity and National Public Radio on an alleged epidemic of campus sexual violence, the OCR issued additional guidance in a “Dear Colleague” letter focusing on sexual violence as a form of sexual harassment.
On April 4, 2011, the US Department of Education, Office for Civil Rights, sent a “Dear Colleague” letter to every US educational institution which receives any federal education funding. It began:
Education has long been recognized as the great equalizer in America. The US Department of Education and its Office for Civil Rights (OCR) believe that providing all students with an educational environment free from discrimination is extremely important. The sexual harassment of students, including sexual violence, interferes with students’ right to receive an education free from discrimination and, in the case of sexual violence, is a crime.
Title IX of the Education Amendments of 1972 … prohibit discrimination on the basis of sex in education programs or activities operated by recipients of Federal financial assistance. Sexual harassment of students, which includes acts of sexual violence, is a form of sex discrimination prohibited by Title IX.
Sexual violence, as that term is used in this letter, refers to physical sexual acts perpetrated against a person’s will or where a person is incapable of giving consent due to the victim’s use of drugs or alcohol. An individual also may be unable to give consent due to an intellectual or other disability. A number of different acts fall into the category of sexual violence, including rape, sexual assault, sexual battery, and sexual coercion. All such acts of sexual violence are forms of sexual harassment covered under Title IX.
(19 pages with 46 footnotes)
For the first time, acts that amount to felony crimes were included as forms of sex discrimination under Title IX, and the definition of these “crimes” was extended beyond criminal law to include any form of “sexual coercion”, which can include such common courting behavior as repeated asking, cajoling or whining.
The most significant element of what amounted to a federal blackmail note was that, to prevent risking loss of federal funding, all educational institutions were required establish a sexual harassment adjudication policy based on a “preponderance of the evidence” standard, and apply clear and explicit penalties for a “guilty” finding – up to and including expulsion from school.
This standard merely requires that it is “more likely than not” that someone is responsible for what they are accused of, is the lowest standard of proof and quite different from the “clear and convincing evidence” standard which most schools used for honor code violations.
This “letter” propagated what is called “sub-regulatory” standards, or new interpretations of existing federal regulations, effectively altering those regulations without the legally-required public notice and citizen input.
The Campus SaVE Act of 2013
In spite of broad concern over the erosion of due process rights, on March 7, 2013, President Obama signed the Campus Sexual Violence Elimination (Campus SaVE) Act into law as part of the Violence Against Women Act (VAWA) re-authorization.
The Campus SaVE Act is intended to increase transparency on campus about incidents of sexual violence, guarantee victims (but not accused) enhanced rights, set standards for disciplinary proceedings, and require campus-wide prevention education programs to “change social norms”, thereby establishing a uniformity of thought, belief and intimate association. The Campus SaVE Act amends the Clery Act, which addresses campus sexual assault policies within the Higher Education Act of 1965.
While the original language of the Campus SaVE Act, when it was introduced in 2011 and 2010, mandated the “preponderance of evidence” standard which was then articulated in the Dear Colleague Letter of 2011, Congress debated and rejected this standard and the final version incorporated in the VAWA omitted any specific standard.
DOJ/DOE Blueprint Letter of 2013
On May 9, 2013, the US Departments of Justice and Education issued a findings letter announcing a resolution agreement with the University of Montana, which refers to the agreement as a “blueprint for colleges and universities throughout the country to protect students from sexual harassment and assault”, explains the Departments’ interpretation of applicable legal standards and defines sexual harassment as “any unwelcome conduct of a sexual nature”. Here are excerpts:
US Department of Justice, Civil Rights Division
US Department of Education, Office for Civil Rights
May 9, 2013
The United States Department of Justice, Civil Rights Division, Educational Opportunities Section and the United States Department of Education, through its Office for Civil Rights, are pleased to confirm the resolution of their investigation and compliance review of the University of Montana’s handling of allegations of sexual assault and harassment at its Missoula campus…. The Agreement will serve as a blueprint for colleges and universities throughout the country to protect students from sexual harassment and assault.
Title IX also requires universities to adopt and publish grievance procedures providing for prompt and equitable resolution of student and employee complaints alleging any action that would be prohibited by Title IX, including sexual harassment and sexual assault.
In addition, a university must take immediate steps to protect the complainant from further harassment prior to the completion of the Title IX and Title IV investigation / resolution. Appropriate steps may include separating the accused harasser and the complainant, providing counseling for the complainant and/or harasser, and/or taking disciplinary action against the harasser.
Sexual harassment is unwelcome conduct of a sexual nature and can include unwelcome sexual advances, requests for sexual favors, and other verbal, nonverbal, or physical conduct of a sexual nature, such as sexual assault or acts of sexual violence. …that is sufficiently severe or pervasive to deny or limit a student’s ability to participate in or benefit from the school’s program based on sex. …“severe or pervasive” sexual harassment can establish a hostile environment that a university must remedy and prevent from recurring.
In determining whether this denial or limitation has occurred, the United States examines all the relevant circumstances from an objective and subjective perspective…
This “blueprint” altered the Supreme Court’s language in Davis from “severe, pervasive, and objectively offensive” to “severe or pervasive” and relied on the complainant’s subjective experience to determine whether an act amounted to harassment.
This national “blueprint” for resolving Title IX sexual harassment complaints drastically expanded the range of adjudicable sexual conduct, effectively undermined the 1st Amendment by banning speech, whether verbal or nonverbal, that another person finds subjectively offensive, and effectively eliminated the legally normative “reasonable person” standard.
This was the basis of the infamous 1993 Water Buffalo Affair, in which a freshman male at the University of Pennsylvania was charged with racial harassment for shouting at a bunch of rowdy (mostly black) sorority women outside his dorm window who were preventing him from studying. It became one of the most important free speech issues in American history.
Not Alone (2014)
Pushed from behind by an increasingly powerful feminist-led propaganda campaign focusing on an “epidemic” of sexual violence, supported by highly questionable research findings (such as the oft-cited “one-in-five” factoid), the Obama administration finally took the bull by the horns and made reducing campus sexual assault a national priority.
In April 2014, when the White House task force issued its initial report, titled “Not Alone”, the OCR provided more guidance that directed campuses how to conduct an investigation, how to examine witnesses, and how to provide interim relief to a claimant. Although this sort of guidance is not binding with the force of law, investigations generally result in resolution agreements requiring institutions to comply with the OCR’s interpretation of the law.
In May 2014, the OCR issued a list naming and shaming 55 colleges and universities then under investigation for compliance violations of Title IX, and supplemental lists have increased that number to nearly 100.
The Teach Safe Relations Act of 2015
The Teach Safe Relationships Act of 2015, introduced on February 3, 2015 by Senators Claire McCaskill (D-MO) and Tim Kaine (D-VA), would require that health education in public secondary schools include learning on “safe relationship behavior” aimed at preventing sexual assault, domestic violence and dating violence. Under current federal law, health and sex education classes needn’t include sexual assault prevention, but pressure to “teach” young men not to engage in sexual violence, based on faulty data suggesting an “epidemic” of rape on college campuses, is being pushed farther down the educational curriculum.
Legislative and Regulatory OverReach
By Anonymous (The author is a student affairs professional at an accredited institution.)
October 28, 2011
Actually, let me rephrase that.
Dear Attorneys Who Are Employed by the Education Department’s Office for Civil Rights,
There. That’s better. Because despite the fact that you addressed me as a “colleague” in the April 4, 2011 missive that has made my professional life so difficult, a document that has become familiar to me and my (actual) colleagues as the “Dear Colleague Letter,” you are not my colleague. A colleague is someone I work with. You are a group of mostly nameless, faceless individuals who crafted a 19-page document that at best complicates my work, at worst undermines my judgment and my ability to make good decisions for my institution and my students.
Not that we haven’t needed some guidance in this area. Sexual assault is indeed a difficult and ubiquitous problem in our work. Drunk students are vulnerable to becoming victims. Drunk students are emboldened to become assailants. And I have a lot of drunk students. We all do. Despite our best efforts to provide alcohol-free activities, alcohol education and significant sanctions for alcohol-fueled behavioral problems, there is still no activity on our campuses that can compete with drinking for students’ interest and affection. I work for a selective institution whose students are academically pretty strong. It’s not as bad on my campus as it seems to be on others. But it’s bad, and I have the incident reports to prove it.
A few years ago, the Center for Public Integrity published a report that excoriated that excoriated colleges and universities for their handling of sexual assault cases. It was an absolutely indicting report… unless the reader was, like I am, a student affairs professional who could easily imagine being the one publicly criticized in the report. Yes, I could imagine it. Not that I believed at that point (or since) that I had mismanaged a sexual assault case, but because the ones I had managed were enormously complex, full of truths, lies, reversals, angry parents, hungry lawyers and empowered supporters.
In each of these, I did my best to navigate the extremely difficult landscape, managing to avoid a public airing of the case by an ill-informed media or a lawsuit brought by a student (victim or accused) who felt wronged in the process. This is not at all to say I’m incredibly skilled. Luck probably plays more a part in this than most of us feel comfortable admitting publicly. I happen to know some of the professionals the CPI report criticizes, and I doubt I am much more competent than any of them. I have just been fortunate not to have been the one in the proverbial hot seat, directing a process that is complicated and flawed, at the precise moment several factors merged to create a public relations and professional disaster.
Please don’t interpret my comments to mean that I don’t appreciate the Office for Civil Rights’ efforts to try to assist me in doing my work. I’m always eager for new perspectives that increase my knowledge and strategies related to sexual misconduct response. In laying out some guidelines for how I should inform my students of our policies, ferry them through the process, and report the outcomes, you have given me and my (real) colleagues some consistent expectations that allow us to keep the issue of sexual misconduct in the forefront of our minds as we design our programs, interventions and support strategies.
You have, though, gone too far. While the legal experts out there have been commenting on, criticizing and calling for revisions of the Dear Colleague Letter, I’ve been plugging away here on my campus, trying to do, at the most fundamental level, the work you purport to oversee.
Let me say this respectfully and with as much clarity as I can: you do not know my work. You do not know what I face every day in responding to a student culture of alcohol-infused hook-ups, where regrettable sex is a daily occurrence. The law has defined sexual misconduct as any activity that takes place with a person who is incapacitated by alcohol or other drugs. That makes sense, until you have to determine what “incapacitation” entails. I’m not much of a drinker myself, but I know that a couple of drinks loosen my tongue enough to say things I might never say without the alcohol. Am I incapacitated? No. But my judgment is impaired.
In some situations, the student who is the accuser is clearly incapacitated – practically (or actually) unconscious. In most cases, though, it’s the impairment of her judgment – agreeing to have sex with someone who, the next morning, she will regret having had sex with – that causes her friends and supporters and other campus employees to tell her she’s been sexually assaulted and needs to file a complaint. This process then begins the long journey down the rabbit hole of OCR-specified response that never ends well.
Let me repeat that, because it haunts me: these things never end well. All students are traumatized to some degree or another. Families are devastated. And the professionals who must coordinate this process are expected to operate with constraints on our judgment and strategies imposed by a group of people who don’t understand what we deal with every day, led by someone who has, according to her online bio, never done a job like mine. Assistant Secretary for the Office of Civil Rights Russlynn Ali is an impressive woman, clearly dedicated to both the legal profession and to education. But nothing I have learned about her indicates that she has ever sat in a seat like mine or been in a position like mine, across from a college student who is reporting an alleged assault or a student who is hearing for the first time that he has been accused of one.
It is unlikely that Ms. Ali has ever sat at desk like mine, on the phone with a parent who cannot believe I allowed his daughter to drink, much less allowed (or not allowed — always a difficult point to discuss) a “boy” to do the things her account reports. Or a parent who wants to know why I have sent her son home without so much as a hearing, an action we call “interim removal”, while we investigate these claims.
“Because the alleged victim is afraid of seeing him, and the Office for Civil Rights has made it clear that our process must support the alleged victim in this way” is not an answer that satisfies an angry mother who believes that her son (1) has been unjustly accused, (2) has not been given a chance to defend himself (yet), and 3) may find his ability to succeed academically compromised by his absence from classes during this investigation. Has Ms. Ali ever had a parent, in a rageful voice, point out the inequity of all of this? Because I’ve experienced that on several occasions as I have tried to do what OCR expects from a “victim-friendly” policy.
What is my response to that parent? That we are told to lead with belief of the alleged victim over the alleged accuser? Unlike a lawyer (and I suspect this is the crux of our differences), I am responsible for the welfare of all of my students – equally and dispassionately. Though I am often appalled by their actions, my job entails doing more than judging them.
My job is also to educate them. Yes, I can hear you now, as clearly as I can hear my more vociferous colleagues: sexual assault victims need to be supported and believed, and men need to be held accountable for their behavior. But you know what? I support my students every day. And I hold them accountable for their behavior. I determine how to do this based on more than two decades’ worth of experience and interactions with them, and I tend to trust my judgment. I do not appreciate having my hands tied by the presumption of guilt the Dear Colleague Letter portrays.
Let me give you an example of a case I managed not long ago. I’ll change a few of the facts, but not the ones that matter here. A woman, in speaking with her resident adviser, revealed that she had had sex with another student several days earlier. They had both been drinking. He invited her to his room and she went, enticed by the promise of more alcohol. Once there, he proceeded to kiss her, then do more, while she, according to her written report, “felt uncomfortable”. Twice he stopped what he was doing and left her on the bed, once to turn on some music and once to get a condom. He also took a phone call in the middle of everything. She remained on his bed, thinking, “This is not really something that I want to do.” She acquiesced to his request that she assume a certain position, that she do certain things to him. “But I really didn’t want to.” When he was done, he offered to walk her back to her dorm, and he did, saying goodnight to her and promising to see her the next morning at breakfast (which he did).
A week after she filed her report with us, beginning the process of charging him with sexual assault (she was, after all, drunk, and never verbally consented to any of his requests), a friend of hers came to us with a very similar report. Almost identical, in fact. He offered to share alcohol he had in his room. He quickly became intimate. She felt uncomfortable. He spoke, made requests, moved across the room for a condom from his dresser. She never verbally consented. She acquiesced to his requests without comment. He walked her back to her room. They had a friendly conversation the next day, and the day after that, just as they had before the incident. Both women then e-mailed their professors requesting some leniency for their class work because they had been “sexually assaulted in a dorm and were working on bringing charges against another student”.
Two sexual assault charges against one student? Could I defend letting him remain on campus while we investigated this? My trusted (real) colleague said no — that if that information got out to those on our campus who felt that we should have immediately removed him, the criticism would be sharp. Furthermore, my (real) colleague said, “If you don’t, you are leaving yourself open to a clear violation of the spirit of the Dear Colleague Letter,” which says that an institution must “take immediate action to eliminate the hostile environment… including taking interim steps before the final outcome of the investigation.”
“But these women are not saying they feel threatened by his presence on campus.”
“What if a third comes forward, and you have to explain that you knew about these first two and didn’t immediately send him home?”
And so I did, and the case proceeded from there.
Looking back, I wish I had been able to bring these students together, to talk about what had happened, given them each a chance to air their grievances, respond, learn from what had happened. I have done that countless times in my office – mediated and sorted through differences between students who have behaved badly toward each other. I think this male student might have learned a lot about how to treat women. And perhaps these women would have learned something about self-respect, agency, their own perception of the place of sex in a relationship.
But the Dear Colleague Letter says clearly that “In cases involving allegations of sexual assault, mediation is not appropriate even on a voluntary basis.” And my fear – yes, it’s fear – of seeing my institution’s name in Inside Higher Ed or The Chronicle of Higher Education as the subject of an investigation, or, even worse, having the “letter of agreement” OCR makes public displayed for all to read – makes me toe the line in a way I sometimes have trouble justifying to myself. I don’t want my employer to be the next University of Notre Dame, College of Notre Dame, Yale, Eastern Michigan.
It’s not that I believe that we shouldn’t be held accountable, and yes, it’s likely that these and other institutions should have done things differently. It’s just that in my most honest moments, despite the efforts of my (real) colleagues here to craft the best possible approach, I doubt our policies and practices could hold up to the intense scrutiny of the team of lawyers OCR will send after us should a complaint arise. Surely, I reason, you will find something, somewhere, that we could have done better. At that point, all the good we might have also done will be lost in the public critique you will offer and we, because we must, will accept without retort.
That should explain the fact that I am an anonymous author. For six months, my (real) colleagues, here and on other campuses, have been talking about the Dear Colleague Letter, about the problems it creates for us, about the apparent lack of understanding of student culture it demonstrates. But we never say these things too publicly. We worry about being branded “soft” on sexual assault by victims’ rights groups and by the media, and we worry about attracting your attention. Our voice has been missing from this debate, just as it seems our input was missing from your letter.
None of us want you knocking on our doors, Title IX complaint in hand, ready to put us under the microscope and force us to explain to you, a group of skilled attorneys, why we did what we did. And that’s the difference between you and my real colleagues: I value their feedback and criticism. In fact, we welcome it from each other, as evidenced by the conversations we constantly have about the decisions we are facing and the improvements we are always trying to make. But we trust that each of us understands what we are up against. I’m not at all sure you do.
Are DOE/OCR Mandates Even Legal?
In “Proof and campus rape: Standards for campus disciplinary proceedings” (July 8, 2014), Hans Bader challenged the legal basis for much of current campus sexual violence regulation.
Hans Bader, who studied economics and history at the University of Virginia and law at Harvard, practiced civil-rights and constitutional law, and was formerly legal counsel at the Education Department’s Office for Civil Rights.
Here is a summary of his article:
In 2011, the Education Department ordered many colleges to change the burden of proof that they use in disciplinary proceedings over sexual harassment. (Under pressure from the Education Department’s Office for Civil Rights, where I used to work, colleges are now routinely expelling or suspending students who are very likely innocent of sexual harassment or assault. They are also taking “interim measures” against accused students who have yet to be found guilty of anything, and the Education Department wants them to take such measures even against students who have never been formally charged with anything on campus.)
In doing so, the Education Department illegally legislated through administrative fiat, and undermined due-process safeguards. It also sought to eliminate cross-examination by the accused, which could reduce accuracy in campus adjudications, and could result in discipline based on constitutionally-protected speech in cases where verbal harassment is alleged.
Historically, most colleges used a “clear and convincing” evidence standard in student and faculty discipline cases, to safeguard due process. As James Picozzi noted in 1987 in the Yale Law Journal, “Courts, universities, and student defendants all seem to agree that the appropriate standard of proof in student disciplinary cases is one of ‘clear and convincing’ evidence.” (James M. Picozzi, University Disciplinary Process: What’s Fair, What’s Due, and What You Don’t Get, Yale Law Journal, 1987)
The Education Department’s position was based on a misunderstanding of who is subject to Title IX, the federal law banning schools from committing sex discrimination. Title IX’s requirements apply to schools, not individual students.
The Education Department’s reasoning for imposing a low “preponderance” standard on school disciplinary proceedings was that this “is the standard of proof established for violations of civil-rights laws” in lawsuits brought in federal court… Therefore, it claimed, preponderance must also be “the appropriate standard for” schools to use in “investigating allegations of sexual harassment or violence”.
But that burden of proof applies to whether the school violated Title IX by behaving inappropriately, not whether students or staff engaged in harassment. Students cannot violate Title IX; only schools can be sued under Title IX, not individuals. Moreover, students “are not agents of the school,” so their actions don’t count as the actions of the school.
The mere existence of harassment by students isn’t enough for liability under Title IX. More is required. The school’s own actions in response to harassment must be culpable. As the Education Department admitted in its 1997 Sexual Harassment Guidance: “Title IX does not make a school responsible for the actions of harassing students, but rather for its own discrimination in failing to remedy it once the school has notice.”
Federal courts have held that there is no violation of the civil rights laws even if harassment occurs, as long as the institution investigates in good faith in response to the allegation of harassment. That’s true even if the institution ultimately refuses to discipline a harasser based on the reasonable belief that he is innocent, after applying a firm presumption of innocence.
For example, an appeals court reversed a jury verdict against the Postal Service for sexual harassment, even though harassment by Postal employees did occur, since the Postal Service had, after investigating the sexual harassment complaint, reasonably, but erroneously, failed to credit plaintiff’s allegations. As the court explained, “a good faith investigation of alleged harassment may satisfy the ‘prompt and appropriate response’ standard, even if the investigation turns up no evidence of harassment…[and] a jury later concludes that in fact harassment occurred.” (Swenson v. Potter, 9th Circuit, 2001)
Courts have said nothing since those decisions, or the Education Department’s 1997 harassment guidance, to suggest that schools violate Title IX just because students themselves are guilty of harassment under a mere preponderance-of-the-evidence standard. Accordingly, the Education Department had no legal basis for its demands.
Indeed, court decisions since the Education Department’s 1997 harassment guidance had made it harder to hold schools liable than the Education Department wished: decisions like the Supreme Court’s 1998 Gebser decision, which dismissed a Title IX lawsuit for failure to show both a school’s knowledge of harassment and its “deliberate indifference” to it.
Giving someone a presumption of innocence isn’t a “violation” of the civil rights laws… No one has a “right” to discipline just because harassment happens: they only have a right to a reasonable response by their school in response to their complaint, which may or may not lead to disciplinary action depending on the evidence.
The Supreme Court also noted in its 1999 decision in Davis v. Monroe County Board of Education that Title IX doesn’t give complainants a “right” to second-guess a school’s reasonable decisions about discipline, noting that there isn’t any “Title IX right” to “particular remedial demands” or “particular disciplinary action,” just because harassment has occurred.
In addition to warning against “second-guessing” of school officials’ disciplinary decisions, the Supreme Court in Davis also emphasized that to successfully sue a school district for damages, a complainant alleging sexual harassment must also show that school officials were “deliberately indifferent to sexual harassment, of which they have actual knowledge”.
Applying that “deliberate indifference” standard, appellate judges ruled that where a school district does not discipline a harasser because it failed to conclusively determine that harassment occurred, it was not liable even where that failure to find guilt was “flawed,” and led to future harassment. ( Doe v. Dallas Independent School District, 5th Cir. 2000.)
Even in the absence of these court rulings, the Education Department’s demands would be invalid, because they impose new legal obligations without complying with the Administrative Procedure Act, which requires agencies to publish rules and regulations in proposed form before imposing them on the public, and give the public an opportunity to comment before adopting them.
Cornell law professor Cynthia Bowman argued that…the lower standard of proof mandated by the Department in its letter “has not been subjected to notice and comment…and thus does not have the status of law.” “The consequences for someone expelled for sexual assault are enormous and will follow him throughout his life, leading to rejection by other schools, inability to qualify for the bar and a great deal of stigma,” Professor Bowman noted. “To impose those consequences on someone requires a rigorous standard of proof and many due process protections to ensure fairness.” “Indeed, there is general agreement among faculty at the Law School that the procedures being proposed [by the Education Department] are Orwellian,” she added.
Leading law professor Richard Epstein also challenged the legality of the Education Department’s demands, declaring that “the Department of Education is on a collision course with the Bill of Rights”. The Education Department’s position was criticized by lawyers such as former US Civil Rights Commissioner Jennifer C. Braceras, former Massachusetts ACLU leader Harvey Silverglate, groups like the American Association of University Professors and the Foundation for Individual Rights in Education…
As former ACLU board member Wendy Kaminer noted, the Education Department is also discouraging colleges from allowing accused students to cross-examine their accusers: “students accused of harassment should not be allowed to confront (or directly question) their accusers, according to OCR, because cross-examination of a complainant ‘may be traumatic or intimidating’.” …This is perverse, since the Supreme Court has described cross-examination as the “greatest legal engine ever invented for the discovery of truth”. (Lilly v. Virginia, 1999.) Moreover, courts themselves invariably permit cross-examination of complainants in sexual harassment lawsuits, so OCR can hardly claim that courts view cross-examination as intrinsically unfair to complainants, much less claim it is illegal.
As the Supreme Court observed in the Davis case, a school is entitled “to refrain from a form of disciplinary action that would expose it to constitutional or statutory claims”. Moreover, in a few campus disciplinary cases, such as Donohue v. Baker (1997), judges ruled that cross-examination was constitutionally required on due-process grounds to test the credibility of the accuser. [The court found lack of cross-examination was prejudicial to the accused student as the decision rested on the relative credibility of the accused student versus the alleged victim.]
The subjective nature of the legal definition of harassment means that there is no category of cases in which cross-examination is more useful or essential to ensure due process.
In another disturbing move, the Education Department’s letter also forbids colleges to allow students found guilty to appeal their punishment or finding of guilt, unless the college also allows complainants to appeal findings of innocence, and to challenge supposedly inadequate punishments… There is nothing nefarious about allowing only the accused to appeal. Courts generally permit only defendants – not the prosecution or the complainant – to appeal the verdict in a criminal case.
Bipartisan Group of Senators Announces Report on Simplifying Federal Regulations for America’s 6,000 Colleges and Universities
On February 12, 2015, a bipartisan group of senators on the Senate education committee, Senators Lamar Alexander (R-Tenn.), Barbara Mikulski (D-Md.), Richard Burr (R-N.C.), and Michael Bennet (D-Colo.), announced a report detailing ways Congress and the Department of Education could streamline and reduce federal regulations for America’s 6,000 colleges and universities, while protecting students and taxpayers.
In November 2013, these senators formed the Task Force on Government Regulation of Higher Education, a group of 16 college and university presidents and higher education experts co-chaired by Vanderbilt University Chancellor Nicholas S. Zeppos and University System of Maryland Chancellor William Kirwan, to conduct a comprehensive, nonpartisan review of the US Department of Education’s regulations and the reporting requirements on colleges and universities.
The task force’s objective was to provide specific recommendations on reducing, eliminating or streamlining duplicative, costly or confusing regulations and reporting requirements to Congress and the administration in anticipation of the ninth reauthorization of the Higher Education Act.
“The stack of federal regulations on colleges and universities today, which stretches as tall as I am, is simply the piling up of well-intentioned laws and regulations, done without anyone first weeding the garden,” said Senate education committee Chairman Alexander. “This report will guide our efforts to weed the garden and allow colleges to spend more of their time and money educating students, instead of filling out mountains of paperwork.”
“When I helped convene this Task Force, I had one goal in mind: to support our institutions of higher education – help them be them as they work to educate our next generation,” Senator Mikulski said. “I have heard many concerns from these institutions regarding federal requirements that, while well-intentioned, often end up being duplicative and burdensome. I agree that we need to regulate, not strangulate.”
“Over a year ago when this task force began its work, I noted the ‘tidal wave’ of regulations facing institutions of higher education and the resulting higher tuition costs to students,” said Senator Burr. “Not only has this report confirmed, with specificity, the extent of these problems, it shows that every day the situation worsens as a result of the Department of Education’s never-ending addiction to regulating colleges and universities. My hope is Congress can put the report’s recommendations to action as soon as possible.”
“Our colleges and universities are the gateways to success in the 21st century economy for this generation and the next,” Senator Bennet said. “We look forward to reading more about the task force’s ideas to help these institutions focus more on improving the quality of education and less on regulations.”
“I appreciate the senators’ commitment to finding solutions to the challenges America’s colleges and universities face due to the sharp increase in the amount and complexity of government regulation,” Vanderbilt University Chancellor Nicholas S. Zeppos said. “As higher education administrators continue to work to keep costs down, increase accessibility, and make college more affordable, this task force represents a valuable opportunity to recommend more efficient regulations that will benefit students and families while we maintain responsible stewardship of taxpayer dollars.”
“It has been an honor to serve with Chancellor Zeppos as co-chair of the Task Force on Federal Regulation of Higher Education and I applaud the hard work of all Task Force members in addressing this issue,” said Chancellor William Kirwan. “While the Task Force recognizes the importance of federal oversight in our accountability to taxpayers, we all stand to better serve our students by making certain regulations less cumbersome.”
In addition to Zeppos, Kirwan and Broad, Task Force members include: Former Senator Bill Armstrong, president of Colorado Christian University; Bruce Benson, president of University of Colorado; Thomas Chema, president emeritus of Hiram College; Margaret Drugovich, president of Hartwick College; Dana Hoyt, president of Sam Houston State University; Brice Harris, chancellor of California Community College System; Jonathan Kaplan, CEO of Laureate Online Education; Neil Kerwin, president of American University; J. Michael Locke, former CEO of Rasmussen College; Harold Martin, chancellor of North Carolina Agricultural and Technical State University; Claude Pressnell, president of Tennessee Independent Colleges and Universities Association; Tom Ross, president of University of North Carolina; and Bob Templin, president of Northern Virginia Community College.
RECALIBRATING REGULATION OF COLLEGES AND UNIVERSITIES
Report of the Task Force on Federal Regulation of Higher Education
The full report begins with this Executive Summary:
The federal government’s substantial fiscal investment in higher education recognizes that postsecondary education is a linchpin in the nation’s social and economic strength. Through that support, the government helps ensure that colleges and universities continue to contribute broadly to the fabric of American society. To ensure prudent stewardship of federal support for higher education, the Department of Education is charged with developing procedures to carry out laws passed by Congress in regard to higher education and with overseeing institutional compliance. Institutions of higher learning recognize the important role regulations play in the oversight of federal investments.
Over time, oversight of higher education by the Department of Education has expanded and evolved in ways that undermine the ability of colleges and universities to serve students and accomplish their missions. The compliance problem is exacerbated by the sheer volume of mandates – approximately 2,000 pages of text – and the reality that the Department of Education issues official guidance to amend or clarify its rules at a rate of more than one document per work day. As a result, colleges and universities find themselves enmeshed in a jungle of red tape, facing rules that are often confusing and difficult to comply with. They must allocate resources to compliance that would be better applied to student education, safety, and innovation in instructional delivery. Clearly, a better approach is needed.
In 2013, a bipartisan group of US Senators recognized that the pending reauthorization of the Higher Education Act (HEA) creates an opportunity to consider these issues in depth. They established a task force of college and university presidents and chancellors to study federal regulation of higher education broadly and identify potential improvements.
Looking at the landscape of regulation of colleges and universities writ large, the Task Force on Federal Regulation of Higher Education identified a number of challenges that are particularly problematic. We concluded that many rules are unnecessarily voluminous and too often ambiguous, and that the cost of compliance has become unreasonable. Moreover, many regulations are unrelated to education, student safety, or stewardship of federal funds – and others can be a barrier to college access and innovation in education.
Based on extensive discussions, consultations with experts, and site visits to campuses, the Task Force identified specific regulations that are of major concern to higher education institutions. Those concerns include problematic financial responsibility standards, confusion and inconsistency in reporting requirements for campus crime [emphasis added], overreach in authorization of distance education programs, inefficient rules concerning verification of financial aid eligibility, counterproductive micromanagement of the accreditation process, and policies that result in consumers being inundated with information of questionable value.
The Task Force also reviewed the processes by which higher education regulations are developed and implemented, and offers several specific ideas for improvement. Recommendations include asking the Government Accountability Office to review the Department of Education’s methodology for estimating institutional costs of compliance with regulations; the creation of clear “safe harbors” for institutional compliance; the recognition of “good faith” efforts to comply; and several proposals for better practices by the Department.
To help policy makers think about the most effective and efficient way to regulate higher education, the Task Force developed the following Guiding Principles to govern the development, implementation, and enforcement of regulations by the Department:
- Regulations should be related to education, student safety, and stewardship of federal funds.
- Regulations should be clear and comprehensible.
- Regulations should not stray from clearly stated legislative intent. [emphasis added]
- Costs and burdens of regulations should be accurately estimated.
- Clear safe harbors should be created.
- The Department should recognize good faith efforts by institutions.
- The Department should complete program reviews and investigations in a timely manner.
- Penalties should be imposed at a level appropriate to the violation.
- Disclosure requirements should focus on issues of widespread interest.
- All substantive policies should be subject to the “notice-and-comment” requirements of the Administrative Procedure Act. [emphasis added]
- Regulations that consistently create compliance challenges should be revised.
- The Department should take all necessary steps to facilitate compliance by institutions.
- The Task Force believes that adherence to these principles would help improve regulation of higher education, and urges their adoption.
Again, to be clear: Regulations serve an important role in ensuring institutional accountability. But requirements that have an excessive reach, or that are unnecessarily costly and difficult to implement – or worse still, that hinder student access to college and drive costs up – are counterproductive. Smarter rules are needed. In the context of the forthcoming reauthorization of the HEA, this report from the Task Force on Federal Regulation of Higher Education proposes many specific avenues to improve the regulation of higher education.
Task Force on Federal Regulation of Higher Education on Clery Act Requirements
The Department’s Handbook for Campus Safety and Security Reporting (also known as the “Clery Handbook”) contains approximately 300 pages, and will soon expand significantly in light of new regulations issued in 2014. In 2012 alone, the Department released approximately 270 “Dear Colleague” letters and other electronic announcements – this means that more than one new directive or clarification was issued every working day of the year.
Between crime reporting and policy disclosures, the Clery Act and related departmental guidance require more than 90 separate policy statements and disclosures.
The Clery Act has been expanded to require institutions to report on a number of incidents that are not “crimes” under the DOJ’s UCR program or NIBRS. Without a single and consistent form for reporting, campus officials spend significant time attempting to determine whether and how a particular incident should be reported in the Annual Security Report required by Clery. In addition, conflicting definitions and determinations, based on incidents that are not crimes outside of Clery reporting requirements, result in inaccuracies and inconsistencies in the data and mean that campus crime statistics cannot be compared with crime statistics gathered from other state and local law enforcement agencies across the country, as the law intended.
In addition, the 2013 amendments to the Violence Against Women Act require institutions to report on stalking, domestic violence, and dating violence, none of which are defined in the UCR as crimes. As a result of this statutory change and the 2014 regulations issued by the Department, universities must deal with two issues: Reporting on incidents that are crimes only under the Clery Act, and using Department of Education definitions for crime reporting that vary significantly from state law.
FACE Commends The Senate’s HELP Report
Families Advocating for Campus Equality (FACE), a not for profit organization that advocates for fairness and due process on our college campuses, supports the findings and recommendations of the Senate Committee on Health Education Labor & Pensions (HELP) Task Force on Federal Regulation of Higher Education, a bi-partisan group of U.S. Senators in consultation with university presidents and chancellors.
In particular, FACE endorses the Task Force’s criticism of the Department of Education’s (DOE) reliance on its Office for Civil Rights’ (OCR) 2011 “Dear Colleague” letter that imposed new Title IX requirements on colleges and universities without notice or public comment. DOE has a duty to participate in “negotiated rulemaking” with groups affected by its directives to discuss and reach agreement on new rules and regulations before they are imposed. Instead, DOE enforced sub-regulatory guidance as a de facto mandate on colleges and universities creating new procedures that are counter to the tried and true principles of due process. As a result, colleges and universities are being strangulated with costly and complex regulations that have the effect of exasperating rather than remedying the problems of sexual assault on campus. One example is the broad, myriad and byzantine reporting requirements issued under the Clery Act.
Partisan and unsubstantiated reports, endorsed by the DOE, that one in five college and university students are the victims of sexual assault, has fueled public outrage. Instead of mitigating this outrage with fully vetted and reliable statistics, DOE and the Clery Act have put colleges and universities under pressure to report more and more incidences of sexual assault to avoid being investigated for non-compliance. The Clery Act has adopted broad reporting requirements that subjectively characterize some incidents of perfectly legal sexual activity among college students as criminal. FACE supports the Task Force’s recommendations to reign in the Clery Act’s reporting requirements to include only activities defined by the Department of Justice as criminal. For further transparency, FACE advocates for fully redacted reports of actual Title IX investigations, hearings and results disclosing data on how many complaints include alcohol consumption, and the type of sexual misconduct alleged.
The Clery Act’s skewed statistics combined with OCR’s guidelines that undermine due process, create a terrible mix that impacts disastrously on students accused of sexual misconduct. With only sub-standard constitutional protections against allegations that may not correspond in any reasonable way to criminal or even wrongful behavior, such students nevertheless face the full weight of punitive consequences: suspension and/or expulsion from their college or university and the life-altering stigma of having been disciplined for sexual misconduct reported in academic records that consequently hampers future job and academic prospects and plans. The Task Force is right to denounce such unjust regulations and procedures.
Sherry Warner Seefeld, President
Families Advocating for Campus Equality
The Foundation for Individual Rights in Education (FIRE) Gets Fired UP
On October 28, 2011, FIRE published an article about it’s the Dear Colleague mandate for a “preponderance of evidence” standard as well as the results of a survey of campus evidentiary standards. Here are the highlights:
In 2001, OCR issued guidance to schools granting them considerable autonomy in their investigations, noting that “[p]rocedures adopted by schools will vary considerably in detail, specificity, and components, reflecting differences in audiences, school sizes and administrative structures, State or local legal requirements, and past experience”. The April 4, 2011, Dear Colleague letter is a clear deviation from prior OCR practice and represents the first time OCR has told all universities that “preponderance of the evidence” is the only standard that complies with Title IX.
To gauge the impact of OCR’s new evidentiary standard mandate, The Foundation for Individual Rights in Education (FIRE) surveyed the top 100 colleges and universities in the country, as defined by the 2011 US News & World Report rankings.
Nine of the colleges ranked in the top 10 used a standard other than preponderance of the evidence. Stanford University, for example, took a cue from our criminal justice system and required that allegations of sexual misconduct be proved “beyond a reasonable doubt”.
In general, the higher a school’s US News ranking, the more likely that school would protect accused students with a higher standard than the OCR-mandated 50.01% standard.
Because of OCR’s new regulations, colleges are no longer permitted to determine for themselves the appropriate level of due process protections granted to students accused of some of society’s most heinous crimes, and instead must apply the same low standard of proof regardless of the totality of their relevant policies for ensuring fair and equitable hearings.
Colleges and universities quickly scrambled to comply with the new OCR rules. Several of these schools have explicitly noted that the only reason they have changed their policies is the new OCR mandate. Without the OCR mandate, it is unlikely any of these schools would have changed their standards of proof.
Prior to the DOE mandate, many universities had discussed, and rejected, the lower standard of proof. At Cornell University, for example, public comments showed strong support for the “clear and convincing evidence” standard. Similarly, when Stanford University considered lowering its standard of proof from “beyond a reasonable doubt” to “clear and convincing evidence” in 1991, a coalition of liberal and conservative students and professors opposed the measure.
The American Association of University Professors (AAUP) issued a response to the OCR “Dear Colleague” letter on August 18, 2011, and took a clear stance against the new rules:
“Given the seriousness of accusations of harassment and sexual violence and the potential for accusations, even false ones, to ruin a faculty member’s career, we believe that the ‘clear and convincing’ standard of evidence is more appropriate than the ‘preponderance of evidence’ standard.”
As noted in another letter from the AAUP to OCR, the AAUP has recommended the ‘clear and convincing evidence’ standard since 1957.
Princeton University’s general counsel noted in March of 2010:
“We are unaware of any controlling judicial authority, or any applicable federal or state statute, that requires the University to adopt a ‘preponderance of the evidence’ standard for student disciplinary matters involving allegations of sexual assault or harassment.”
Ironically, the “Dear Colleague” letter may not itself be legally sound, and colleges may be changing their rules under an invalid mandate. It has been nearly 40 years since Title IX passed, and only the April 4, 2011, letter gives any indication that colleges must comply with a “one size fits all” system for resolving allegations of sexual misconduct.
To introduce a new agency rule, OCR is obligated under the federal Administrative Procedures Act (APA) to publish a notice of its proposed rules change and must allow a period for public comment. When agencies such as OCR do not follow the APA’s notice-and-comment requirements, they effectively change the law without any democratic accountability.
At Stanford University Unlikely Allies Oppose Change in Standard of Proof
In 1991, prior to and independent of any federal mandate, Stanford University News Service described the controversy over a proposed internal change of policy:
An unusual blend of campus groups, ranging from 1960s activists to conservative Stanford Review writers, are finding themselves in agreement in opposing a series of proposed amendments to Stanford’s Legislative and Judicial Charter.
The most controversial of the amendments would lower the standard of proof needed to find a student guilty of a conduct violation – including rape, theft, cheating or disruption of normal university operations – from “beyond a reasonable doubt” to “clear and convincing” evidence.
Particularly vocal in their opposition to the burden of proof amendment are 19 Stanford alumni and faculty who were active in the campus upheavals of the 1960s, and attorneys who once defended Stanford students involved in those demonstrations.
Their statement said: “There is no doubt in our minds that the proposed changes are a fundamental attack on legitimate student rights to a fair hearing.”
Senior David Sacks, writing in a Nov. 18 column for the conservative Stanford Review, agreed. “Rarely, if ever, have ’60s protesters and Hoover fellows, students and alumni, the Daily and the Review rallied together so dramatically, so decisively around one campus issue,” he said.
“Lowering the burden of proof could too easily result in increased accusations and convictions of innocent students. … If we really want to be tough on rapists, we should send alleged victims to the police, who can conduct search and seizure of important evidence, subpoena witnesses and mete out a sterner punishment than expulsion from college.”
Two decades prior to the Dear Colleague Letter, students and faculty across the political spectrum at one of our premier institutions of higher education joined hands in opposing a much less precipitous decline in evidentiary standards than what has been (illegally) forced upon our nation’s colleges and universities today by an overzealous administration bolstered by an extremely vocal, activist, radically feminist victim-advocacy community.
America’s educational institutions should not have to balance their educational purpose with the demands of an increasingly strident advocacy community such that they also become extra-legal tribunals for woman (primarily) who allege sexual violence to seek redress without having to deal with the constitutional provisions and protections or the evidentiary standards that are fundamental elements of our nation’s legal system.
What may appear to be concern for women’s equal access to education has, instead, laid the paving stones of the road to hell through our college campuses. This social engineering has made our colleges neither safer nor just, but has created unnecessary obstacles to education and reversed sex-based discrimination at the college level in an educational system which has profoundly inopportuned boys from the earliest elementary grades onward.
Letter from the US Commission on Civil Rights re: DOE/OCR Over-Reach
On February 26, 2015, two members of the US Commission on Civil Rights, pending the publication of their latest report – Enforcement of Sexual Harassment Policy at Educational Institutions by the US Department of Education’s Office for Civil Rights (“OCR”) and the US Department of Justice (“DOJ”) – wrote a letter to all the House and Senate members of the Appropriations Committees and the Subcommittees on Labor, Health and Human Services, Education and Related Agencies.
Here is a summary:
Dear Distinguished Members of Congress:
We write as two members of the eight-member US Commission on Civil Rights (“the Commission”), and not on behalf of the Commission as a whole, to comment on a provision of the proposed Obama budget that would increase funding for the Department of Education’s Office for Civil Rights (“OCR”) by 31%. We counsel against any such increase.
In our study of all three topics, we have noticed a disturbing pattern of disregard for the rule of law at OCR. That office has all-too-often been willing to define perfectly legal conduct as unlawful. Though OCR may claim to be under-funded, its resources are stretched thin largely because it has so often chosen to address violations it has made up out of thin air. Increasing OCR’s budget would in effect reward the agency for frequently over-stepping the law. It also would provide OCR with additional resources to undertake more ill-considered initiatives for which it lacks authority. We strongly encourage Congress to take into account this troubling pattern of overreach in deciding whether to support the President’s proposed increases to OCR’s budget.
Title IX of the Education Amendments Act of 1972 states, “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving federal financial assistance ….” This provision has been interpreted by the Supreme Court to make schools civilly liable for failing to remedy student-on-student sex harassment but “only where [the school districts] are deliberately indifferent to sexual harassment, of which they have actual knowledge, that is so severe, pervasive, and objectively offensive that it can be said to deprive the victims of access to educational opportunities or benefits provided by the school”.
But OCR’s Dear Colleague Letter of October 26, 2010 on harassment and bullying goes much further than that. It reads Title IX and other civil rights provisions in a manner that would greatly expand the scope of school liability compared to the legal standard set forth in Davis (which we believe was already an expansive reading of Title IX). In doing so, it creates a number of problems, including First Amendment problems. To start with, OCR changes the first prong of what constitutes prohibited harassment/bullying that schools are responsible for preventing from that which is “severe, pervasive, and objectively offensive” to that which is “severe, pervasive, or persistent” (ital. added.) Davis uses the conjunctive – and requires that all three conditions be met.
The Supreme Court specifically stated that one incident cannot give rise to liability. Yet under OCR’s interpretation, schools can violate Title IX based on a single student act if the government believes it is sufficiently severe.
OCR’s formulation could also cover mild but persistent teasing by one student of another, thus literally “making a federal case” out of ordinary childhood misbehavior.
Further, OCR omits the term “objectively offensive” from its formulation of the legal standard, potentially removing a reasonable person protection. The Foundation for Individual Rights in Education (“FIRE”) warned in a public comment sent to the Commission:
The loss of the crucial “reasonable person” standard means that a school’s most sensitive students effectively determine what speech is prohibited. The “reasonable person” standard is a critical guard against punishing speech based solely on subjective (and possibly unreasonable) listener reaction – something that courts have repeatedly held unconstitutional over the years.
OCR replaces the Supreme Court’s requirement that the harassment “deprive the victims of access to educational opportunities or benefits provided by the school” with the almost infinitely broad “interfere with or limit a student‘s ability to participate in or benefit from the services, activities, or opportunities offered by a school”.
OCR also changes the notice requirement from “actual knowledge” to “knows or reasonably should have known”. The “actual knowledge” requirement recognizes that the anti-discrimination law is not directed at students but at schools, and schools without knowledge of the harassment cannot be said to have discriminated.
These deviations from Davis have expanded school districts’ legal obligations significantly. If OCR claims to be stretched thin, it has gotten itself there in part by imposing additional obligations on school districts across the country that lack a basis in law. Congress should question seriously whether it wants to reward and enable such empire-building by handing OCR additional funds.
OCR misstates applicable law on sexual assault and harassment on campus, encourages unfair treatment for some accused students, and gives colleges and universities a green light to trammel students’ First Amendment rights.
OCR’s guidance documents raise serious concerns. The 2011 Dear Colleague letter on sexual violence required many universities to change the burden of proof used in sexual harassment disciplinary proceedings. Before that, many universities used the “clear and convincing” standard instead of the “preponderance of the evidence” standard that OCR now requires. Yet nowhere in the text of Title IX or in earlier OCR regulations can such a requirement can be found, and given the importance of safeguarding the rights of accused students, the “clear and convincing” standard would seem to be the more appropriate one in at least some situations. Further, “Questions and Answers on Title IX and Sexual Violence” strongly discourages cross-examination of accused students by their accusers. Yet one federal district court has held that cross-examination is constitutionally required on due-process grounds when an accuser’s credibility is an important issue in a disciplinary proceeding.
First Amendment issues loom large in this area. Defining “sexual harassment”, as OCR’s official materials do, to include students’ “telling sexual or dirty jokes”, spreading “sexual rumors” (without any limitation to false rumors), “circulating or showing e-mails or Web sites of a sexual nature”, or “displaying or distributing sexually explicit drawings, pictures, or written materials” can easily cover speech protected by the First Amendment. Nonetheless, risk-averse colleges and universities have jumped to adopt the vague harassment standards set forth by OCR.
To be crystal clear: we think sexual violence is deplorable. The question is not whether it should be tolerated on campus. There is no question that it should not be. The only public policy question relevant here is “What does (or should) federal law require colleges and universities to do to prevent it?” Much of the task of keeping women (and men) safe on campus must be done by local police and prosecutors. If OCR has a role, it is merely to supplement that important work.
It is difficult for school districts, universities, and private citizens to combat OCR’s unsound policies. One of OCR’s frequently-used tactics is to launch an investigation of a school that it has reason to believe is out of compliance with its announced policies. Federal agencies claim that investigations are a less severe action than suing an institution outright. Although this is true up to a point, it is important to understand that OCR often takes years to conduct an investigation. The investigations are thus a punishment in and of themselves. The institution must hire attorneys, make staff and students available for interviews, and produce voluminous records for OCR. The institution suffers the reputational harm of being branded as having engaged in or tolerated racial discrimination or sexual harassment. When OCR finally offers the institution a settlement in lieu of going to court, the institution frequently has no alternative but to accept. But this means that OCR is almost never seriously challenged, and the courts never have the opportunity to rule OCR’s guidance out of bounds. Congress, using the power of the purse, is the institution that is best able to check OCR’s overreach.
Signed, Gail Heriot & Peter Kirsanow
by Robert Riversong: may be reproduced only with attribution for non-commercial purposes and a link to this page.
Misandric Feminism vs. Progressive Gender Equality (excerpt of above)
Male Victims of Sexual Violence (also an excerpt of the first essay)
Yellow Journalism and the Meme of “Rape Culture” – Rolling Stone and U-VA Gang Rape
Dear President Sullivan – letter from 17 attorneys involved with campus sexual assault claims throughout America, detailing specific reasons why they “are concerned that the University’s Proposed Student Sexual Misconduct Policy is both vastly over inclusive in attempting to define prohibited conduct and ill equipped to guarantee a procedure for resolving allegations that is fair and impartial”.
It’s Time for a U-VA Apology – Op-Ed from a 25-year U-VA professor and his U-VA junior son
Journalistic Fabulism and Ideological Agendas – the Sabrina Rubin Erdely Story
New Puritanism – New Paternalism – The “Rape Culture” Narrative Demeans Women, Demonizes Men, and Turns Universities into Witch Hunt Tribunals
Dear Senators – letter from 20 attorneys critical of the Campus Accountability and Safety Act (S. 2692)
Sexual Assault and Justice: Can we reconcile the belated attention to rape on campus with due process? by Nancy Gertner, feminist lawyer, retired federal judge and Harvard Law professor
The Pendulum Reverses – Again – The Betrayal of Liberty on America’s Campuses & Men Strike Back against Title IX Tribunals
Men are Twice-Raped – Domestically and Globally, Men and Boys are Victims of Sexual Violence at rates Equal to those of Women, and are Assumed to be Villains whenever a Woman Accuses
All Sex is Rape – All Men are Rapists : Patriarchy = Rape Culture
A Model of Campus Gender-Based Harassment – The Columbia University “Mattress” Story
A Case Study in “Politically-Correct” Reactionary Response – The Duke Lacrosse Team Stripper Rape Hoax
When the Megaphone becomes the Gavel – Two legal experts on sex discrimination law and procedure argue that the current Title IX mandates for America’s colleges and universities are legally unsupportable and both practically and ethically indefensible.
Two Over-Privileged Millennials Engage in Sex and Get F-cked – The Stanford “Model” Student and her Silicon Valley Mentor
The Rape Culture Meme – It’s to authentic human culture what genetically modified corn is to maize.