Two legal experts on sex discrimination law and procedure argue that the current Title IX mandates for America’s colleges and universities, prescribed and enforced by the US Department of Education’s Office of Civil Rights, are legally unsupportable and both practically and ethically indefensible.

 

Trading the Megaphone for the Gavel in Title IX Enforcement

In the Feb 18, 2015 Harvard Law Review Forum, “Trading the Megaphone for the Gavel in Title IX Enforcement: Backing off the hype in Title IX enforcement”, Janet Halley, Royall Professor of Law, Harvard Law School, argues that the shift from feminist advocacy to governance requires a more balanced, objective and reasonable approach to such fraught issues as campus sexual violence and harassment.

Janet Halley, PhD, JD

Janet Halley, PhD, JD

Halley has a PhD in English Literature from UCLA and a JD from Yale Law School. In addition to her faculty position at Harvard Law School, she has taught at Stanford Law School, Tel Aviv Buckmann School of Law and in the Law Department of the American University in Cairo. She was awarded the Career Achievement Award for Law and the Humanities by the Association for the Study of Law, Culture and the Humanities. She teaches courses on the intersections of legal theory with social theory.

Here is a summary of the article:

When feminist advocates on campus sexual assault “speak truth to power,” they speak for (and often as) victims and survivors… But as feminists issue a series of commands from within the federal government about what the problem of campus sexual violence is and how it must be handled, and as they build new institutions that give life to those commands, they become part of governmental power.

The paradigm cases of the movement have been women drugged at fraternity parties and raped by groups of men, or women staggering home from these parties with the supposed help of men who proceed to rape them there. Included in that paradigm are women who have agreed to have some sex and find themselves forced to have much more, or much different, sex than they signed on for. If those were the only cases that the new system was destined to address, it would be no big deal to trade the megaphone for the gavel.

But there are lots of harder cases. How will feminists handle them? Denial and a taboo on blaming the victim have been the favored strategies among advocates: will their allure carry over into governance?

[What follows are cases] I’ve encountered over the years of my involvement in sexual harassment enforcement, advocacy, scholarship, and teaching. Each of them will come up, some of them often, in the new Title IX student-discipline institutions. Moreover, each of them raises policy concerns that will never be addressed in the language of a single-purpose social movement but that are at the core of responsible government.

Civil Liberties Framed as Indifference to Abused Women

Consider the case of Anna, a freshman at Hobart and William Smith Colleges who reported being raped at a party in the first weeks of her freshman year. The New York Times’s bombshell article exposing this case – “Reporting Rape, and Wishing She Hadn’t: How One College Handled a Sexual Assault Complaint”.

A reasonable conclusion from the Times article is that at least some institutions of higher education systematically undervalue victims, protect wrongdoers, and expose their women students – whether through misogyny and patriarchal bias, callous indifference, or sheer incompetence – to a male-dominant hostile environment.

But read more carefully, Anna’s case is more ambiguous… The furor over Anna’s case amounts to pressure on schools to hold students responsible for serious harm even when – precisely when – there can be no certainty about who is to blame for it. Such calls are core to every witch hunt. Speaking as a feminist governor to other feminist governors, I have this simple message: we have to pull back from this brink.

Facilitating Bias Against and Disproportionate Impact on Sexually Stigmatized Minorities

From Emmett Till to the Central Park Five, American racial history is laced with vendetta-like scandals in which black men are accused of sexually assaulting white women that become reverse scandals when it is revealed that the accused men were not wrongdoers at all.

But nothing so malign need be at work when black men show up in the dock: morning-after remorse can make sex that seemed like a good idea at the time look really alarming in retrospect; and the general social disadvantage that black men continue to carry in our culture can make it easier for everyone in the adjudicative process to put the blame on them. Similar dynamics affect gay men, lesbians, and trans individuals: being attracted to them can so shock some people that the easiest way back to equanimity is to attack them.

One of the most dangerous effects of the U.S. Department of Education Office for Civil Rights (OCR) campaign to force institutions of higher education to take sexual harassment and sexual assault on campus more seriously is the idea – vividly manifested in the institutional reforms adopted at Harvard University last summer – that a single-purpose Title IX office, specializing exclusively in sexual and gender-based harassment, is the right institutional response. …the Harvard Title IX Office, dedicated exclusively to enforcing the University’s new rules on sexual and gender-based harassment, has no mandate to ensure racial equality.

The best way to correct for this, in my view, is to reduce the Title IX Office to a compliance-monitoring role, and get it out of the business of adjudicating cases… Cases should go to a body charged with fairness to all members of our community, and with particular charges not only to secure sex equality but also to be on the lookout for racial bias and racially disproportionate impact and for discrimination on the basis of sexual orientation and gender identity – not only against complainants but also against the accused.

Cases Involving Sexual Messages that Are Culturally Coded

Campuses are multicultural environments, bringing together people from a wide range of backgrounds in socioeconomic class, cultural and linguistic vocabularies, and historical experience. Across these cultural lines, communication about many things, including matters relating to sex, sexuality, and gender, can be torqued by the incommensurability of the parties’ social codes and their inconsistent and even clashing sexual moralities. The question raised by the cultural defense in criminal law comes up here: when two cultures come into conflict over the meaning of a sexual encounter, which one wins? Adjudicators have to anticipate that their own experiences and biases may play a role in the way that they answer.

To the extent that the campus-sexual-assault movement expresses the priorities and visions of white middle-class women, it may not be providing us with everything we need to know to make fair decisions in cases involving class, race, and other key differences.

The OCR insists that all participants in the processing of sexual harassment complaints receive training that makes them competent to render prompt and equitable decisions, and Harvard…provides a sixth-grade level summary of selected neurobiological research. The take-away lesson of these pages is that a victim of sexual assault may experience trauma, which in turn causes neurological changes, which in turn can result in “tonic immobility”. Tonic immobility, in turn, can cause the victim to appear incoherent and to have emotional swings, memory fragmentation, and “flat affect”. Her story “may come out fragmented or ‘sketchy’.” and she can be “[m]isinterpreted as being cavalier about [the event] or lying”. These problems, in turn, can cause police and sexual harassment investigators to dismiss serious claims, tragically because of symptoms of the trauma itself.

So far, that is the only training provided to Harvard personnel handling sexual harassment claims [and it] is 100% aimed to convince them to believe complainants, precisely when they seem unreliable and incoherent. … Meanwhile, the immense social, cultural, and psychological differences that can affect the credibility and coherence of both parties’ accounts do not seem to warrant any mention.

Cases Involving Drinking and/or Drugs

This very large class of cases includes sexual intercourse or other sexual contact with persons who have been administered mind-altering substances without their knowledge or consent. … I think we can all agree those are among the easy cases… Also among the easy cases: someone having sex with an unconscious person who has not, before falling asleep or passing out, given consent to such contact.

But let’s expose ourselves to the harder cases, where a person…was at the time of the conduct voluntarily altered by drugs or alcohol. It includes sexual contact with a person who is not unconscious but severely impaired. Ditto but only somewhat impaired. It includes people whose preferences and judgments differ in their substance-affected state from those they would have entertained or made while stone-cold sober. It embraces cases brought by women who have willingly consumed drugs and/or alcohol, and who gave their assent to sexual activity (in the sense that they signaled willingness or desire), but who did not consent [subjective permission], or who were confused about whether to consent or not but who “went along” …because they feared social conflict or social awkwardness… It includes women who assented and consented competently after consuming alcohol or drugs and who, on becoming sober the next day – or months, or even years, later – sincerely reject that idea that they could have consented. It includes women who did all of that and now – the next day, or months, or even years later – reject the idea that they should have consented and enter into a state of bad faith denial of the fact that they did consent.

The cases differ, moreover, in the degree of incapacitation and/or impairment, and this is not merely a factual but also a morally difficult definitional question.

Compound all of that with the differences between incapacitation or impairment…with a frequent concomitant of heavy drug and alcohol use: memory loss. This poses more than merely evidentiary problems and credibility issues in cases involving alcohol and drug use… But what if it is selective; what if it is self-serving; what if it is motivated by unconscious racial bias or by a felt need to disavow shame, avert a crise de conscience, or pacify an angry parent, spouse, or partner?

This raises a final layer of difficulty: by far most of these cases arise in a student drinking culture that promotes heavy drinking and drug use – often rising to the level of extreme drinking and drug use – precisely for the disinhibition and altered consciousness that they provide.

The Harvard University Policy’s language governing cases of incapacitation and impairment [includes] that When a person is so impaired or incapacitated as to be incapable of requesting or inviting the conduct, conduct of a sexual nature is deemed unwelcome, provided that the Respondent knew or reasonably should have known of the person’s impairment or incapacity… A Respondent’s impairment at the time of the incident as a result of drugs or alcohol does not, however, diminish the Respondent’s responsibility for sexual or gender-based harassment under this Policy.

But note the steep asymmetry between the consequences of drinking and drug use for the complainant and for the respondent: for the former, intoxication is, to one degree or another, the basis for a per se finding of unwantedness even when assent – even when consent – has been given; but for the latter, it has no mitigating effect on his conduct.

[Such almost universal policies show] a bias in favor of complainants and against respondents… a bias that almost certainly aligns with a bias for women and against men.,, When so much of the drinking and drug use by students in the contemporary cultural scene is actively sought out by men and women alike, and when so many of the sexual encounters are fueled by heavy consumption of consciousness-altering substances by both parties, I think feminist governors have to think hard about what they are doing when they try, through provisions like this and by advocating their expansive interpretation, to predetermine women as victims and men as wrongdoers.

One justification for biasing the system to favor women and disfavor men is a perception that, in the campus drinking culture, men have more power than women, along with a social-change intuition that a rule shifting bargaining power over sex decisions from the former to the latter, precisely through the threat of predetermined victimhood and guilt, will be an effective way to change that culture. This logic makes sense: get them by the balls and their hearts and minds will follow. But it is not cost free. It entails a decision to impose a serious moral stigma and life-altering penalties on men who may well be innocent. Doing this will, in turn, delegitimize the system. And it entails a commitment to the idea that women should not and do not bear any responsibility for the bad things that happen to them when they are voluntarily drunk, stoned, or both. This commitment cuts women off – in theory and in application – from assuming agency about their own lives. Since when was that a feminist idea?

Cases Arising from the Breakup of Long-term Intimate Relationships

Where there is no evidence of physical abuse, accusations of sexual misconduct arising after the breakup of long-term relationships can – and should be – very hard to sort out. These cases involve not only what he or she says happened but what he or she says it meant in the private language of each relationship. The adjudicator steps into a…maze in which identical episodes have such dramatically different valences that both sides can be truthfully and credibly telling their own understandings and experiences without offering a decision-maker any plausible basis of decision other than his or her own cultural assumptions and biases.

None of this is to deny that some breakups are precipitated or accompanied by acute sexual harassment, everything from quid pro quo to subtle but disadvantaging use of institutional power. But sometimes it’s just an immiserating breakup, morphed into the form of a sexual misconduct charge.

Impacts Without Misconduct

Here is the case that woke me, personally, up to the dangers of an unthinkingly broad, advocacy-based definition of sexual harassment. An employee, who disclosed eventually that she had been the victim of sexual abuse as a child and was ever-vigilant about her personal security, brought repeated complaints of sexual harassment against male faculty. She experienced being physically bumped by a male faculty member in the tight quarters of a copy room to be a sexual assault so humiliating that she could not communicate directly any more with that person. Hallway eye contact that lasted too long had the same effect on her – giving rise to an accusation against another faculty member for repeated unwanted sexual conduct. Eventually we realized that these complaints would keep coming in and, on investigation, keep failing to meet any reasonableness standard. It was a tragic situation – the episodes were both severe and persistent for her, and severely limited her work activities, but we could not keep entertaining the idea that they were sexual harassment.

It is not at all clear to me that this case, which occurred more than a decade ago, would be handled the same way today. Then, we were working in a framework that required sexual harassment enforcers to identify a wrongdoer. But the “prevention” branch of hostile environment policy emanating from advocates and the OCR is eroding the link between harm and wrongdoing. Increasingly, schools are being required to institutionalize prevention, to control the risk of harm, and to take regulatory action to protect the environment. Academic administrators are welcoming these incentives, which harmonize with their risk-averse, compliance-driven, and rights-indifferent worldviews…

I recently assisted a young man who was subjected by administrators at his small liberal arts university in Oregon to a month-long investigation into all his campus relationships, seeking information about his possible sexual misconduct in them (an immense invasion of his and his friends’ privacy), and who was ordered to stay away from a fellow student (cutting him off from his housing, his campus job, and educational opportunity) – all because he reminded her of the man who had raped her months before and thousands of miles away. He was found to be completely innocent of any sexual misconduct and was informed of the basis of the complaint against him only by accident and off-hand. But the stay-away order remained in place, and was so broadly drawn up that he was at constant risk of violating it and coming under discipline for that.

When the duty to prevent a “sexually hostile environment” is interpreted this expansively, it is affirmatively indifferent to the restrained person’s complete and total innocence of any misconduct whatsoever.

In a related development, OCR increasingly implies that the only adequate “interim measure” that can protect a complainant in the Title IX process is the exclusion of the accused person from campus pending resolution of the complaint. …advocates and the OCR are arguing that all complainants are trauma victims subject to continuing trauma if the persons they accuse continue in school: merely “seeing” the harasser is deemed traumatic.

Interim measures and environmental security provisions are justified as “merely administrative”… But ending or hobbling someone’s access to education should be much harder than that. It may well be that the only effective way to convince people that this tendency is dangerous is to point to the rights they invade: rights to privacy, to autonomy, to due process. But… assuming danger, risk, and holistic environmental contamination ensures that restrictions will go into effect even where the facts don’t justify them. Will decision-makers – and in particular governance feminist decision-makers – be able to resist this trend?

 

Standards for Campus Disciplinary Proceedings

In his July 8, 2014 article, “Proof and campus rape: Standards for campus disciplinary proceedings”, attorney Hans Bader details the legal precedents and court decisions which contradict and undermine the legal legitimacy of the current DOE/OCR Title IX mandates.

Former DOE/OCR Attorney Hans Bader

Former DOE/OCR Attorney Hans Bader

Hans Bader is Counsel at the Competitive Enterprise Institute in Washington. He graduated from the University of Virginia with a BA in economics and history, and later earned his JD from Harvard Law School. Before joining CEI, Bader was Senior Counsel at the Center for Individual Rights. He practiced civil-rights, international-trade, and constitutional law, and used to practice education law, including a stint at the Education Department’s Office for Civil Rights.

Here is a summary of his article (with only a few of the legal citations):

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. (See 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”. (See 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.

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by Robert Riversong: may be reproduced only with attribution for non-commercial purposes

See also:

When Progressive Social Change Becomes Regressive Ideology: From Women’s Liberation to Cultural Misandry – ReHonoring Masculinity & Achieving Gender Justice

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

HELP for DOE Regulatory Excess – A Senate Task Force Report Recommends Scaling Back the Mountain of Regulations Strangling Higher Education Institutions

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

Two Sexual Assault Studies Contradict Stereotypes

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

Two Over-Privileged Millennials Engage in Sex and Get F-cked – The Stanford “Model” Student and her Silicon Valley Mentor

Insurance Industry Revelations and Prescriptions about Campus Sexual Assault

The Feminist Movement has Cannibalized Its Own Core Values and Become Its Own Worst Enemy

The Rape Culture Meme – It’s to authentic human culture what genetically modified corn is to maize.

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