Universities’ Compliance with Title IX OCR Directives: Do the New Sexual Harassment/Sexual Offense Policies Advance Social Justice?

Introduction

Title IX of the Education Amendments Act of 1972 seeks to prohibit discrimination premised on gender in the programs and activities of institutions of education that are recipients of federal funding. Title IX’s passage was prompted by the documented denial of social justice afforded female collegiate students, which included reduced opportunities to participate in sports, in particular classes, and in positions of leadership. Initially, the statute was employed to deter discrimination regarding both educational and recreational opportunities in these areas, and indeed, Title IX has attained much success in terms of women’s participation in the academic and sports arenas. “Title IX’s role in furthering the explosive growth of girls’ and women’s sports has been widely acknowledged,” although concomitantly it has been cited as one of the purported causes of a declining number of sports participation opportunities for collegiate men (Brake, 2004; Garber, 2002). It has also been utilized to expand opportunities for women in scientific and technical fields (Taylor & Johnson, 2015). Although the statutory framework did not address issues related to sexual harassment, both the Department of Education’s Office of Civil Rights (OCR) and the U.S. Supreme Court interpreted Title IX to encompass both faculty/student and student/student sexual harassment cases (Taylor & Johnson, 2015) as a hostile atmosphere could serve to limit a student’s access to educational opportunities.

On April 4, 2011, the OCR of the U.S. Department of Education (DOE) issued in a letter sent to each publicly funded educational institution—and framed as a “Dear Colleague” letter—substantive guidelines regarding what it deemed the proper implementation of Title IX with respect to instances of sexual harassment and sexual violence on campus. The OCR provided no period for comment or revision by the affected institutions with respect to these mandated procedures; nor did Congress pass any statute requiring universities to reform their campus disciplinary procedures. Notably, the leverage exercised by the OCR with respect to the institutions’ adoptions of the new guidelines is the withdrawal of federal funding. Pursuant to this new mandate, the OCR announced in 2014 that it was reviewing a publicly available list of more than 85 educational institutions for possible violations of federal law with respect to the manner in which they address sexual violence and harassment complaints. The number of colleges “finding themselves in the cross hairs” of the OCR in this regard has escalated to approximately 161 institutions (Mangan, 2016). Indeed, the American Law Institute has commenced a campus-rape project intended to develop guiding principles for college officials and “bring some clarity to the tangles of compliance with federal law” (Brown, 2015).

Unquestionably, adopting a stance which endeavors to fully address sexual harassment and sexual violence on college and university campuses is crucial to the ability of women to be afforded full and complete freedom from discrimination in all its facets. The mandates of the OCR, however, have engendered serious critical commentary with regard to (a) the authority of the OCR to issue these “regulations” in a fashion inconsistent with the mandates of the Administrative Procedure Act; (b) the alteration of the standard of evidence to be employed in a school’s grievance procedure for sexual harassment or sexual violence from the stricter “clear and convincing” standard formerly utilized by many institutions to the now required “preponderance of the evidence”; (c) whether a mandated procedure which negates the right to cross-examine one’s accuser, among other limitations, violates basic tenets of fundamental fairness or due process; (d) whether the rights against double jeopardy and self-incrimination are threatened by mandated OCR procedures; (e) whether, in fact, institutions of higher education serve as the appropriate forum to hear rape cases; (f) whether the procedures mandated by the OCR pose threats to academic freedom and First Amendment rights; and (g) whether, in a desire to comport with OCR mandates and avoid threatened “listing” censure and withdrawal of federal funding, institutions of higher education may exhibit a “rush to judgment” as witnessed in the notorious and ill-founded rape charges asserted against both the Duke University lacrosse team and the more recently fabricated University of Virginia fraternity scandal. All members of institutions of higher education would concur that they are deeply committed to fostering a university climate devoid of sexual harassment and sexual violence that would diminish educational opportunities for women. In seeking this meritorious goal of fully affording women freedom from discrimination in all its facets, however, do the new sexual harassment and assault policies violate basic elements of fairness and due process for those accused of such behavior? Do OCR directives achieve social justice for all?

(a) Authority of the OCR to issue binding “Dear Colleague” letters

On January 7, 2016, Senator James Lankford, Chair of the Senate Subcommittee on Regulatory Affairs and Management, “in a sharply worded missive” to the OCR, challenged the authority of the department to issue the nineteen-page “Dear Colleague” letters, which purport to merely interpret existing Title IX law, but, in fact, enact “sweeping regulatory changes without first going through the required notice and comment procedures required by the Administrative Procedure Act” (New, 2016). In his letter he seeks assurance that failure to adhere to OCR’s policies will no longer serve as grounds for “investigation or revocation of federal funding.” The Foundation for Individual Rights in Education (FIRE) concurs that OCR skirted the requirements of notice and comment in creating policies, but observes that universities will not mount challenges with so much at stake (New, 2016). Some critics deride the “Dear Colleague” letter as an “egregious” violation of the APA (Bader, 2015), and others denounce the OCR’s “implausible reinterpretation of [Title IX’s law] to impose mandates unimagined by the law’s sponsors” (Taylor & Johnson, 2015). Others, however, contend that the OCR is merely proffering guidance and interpretation of the statutory language of Title IX. Further, it is observed that other agencies bypass the appropriate procedures for issuing new regulations by imposing the obligations in “obscure ‘guidance’ letters, under the fiction that they are just restating the law” (Bader, 2015).

(b) Alteration of the standard of evidence to be employed in university hearings

Pursuant to the “Dear Colleague” letters and a 2014 “Questions and Answers on Title IX and Sexual Violence” issued by the OCR, each institution is compelled to utilize a lower standard of proof than had been formerly utilized in sexual harassment and assault cases. Colleges were ordered to “use a preponderance of the evidence . . . standard in any Title IX proceedings, including fact finding and hearings.” The standard which had typically been utilized in university hearings, and which has traditionally been regarded as the appropriate standard of proof with regard to student disciplinary cases (Bader, 2015), was that of “clear and convincing evidence,” which translated as approximately 74 percent of the evidence weighing toward a finding of guilt. In contrast, “preponderance of the evidence,” typically utilized in cases of negligence, for example, warrants a finding of guilt when approximately 51 percent of the evidence supports such a result. Thus, an accused can be deemed a violator by a presiding Title IX university officer with only a 51 percent certainty that the accuser’s description of events is accurate.

This change engendered harsh criticism emanating from law faculty of both Harvard Law School and the University of Pennsylvania Law School, both of which asserted the policy might not afford due process to the accused. 28 Harvard Law professors, including noted scholars Alan Dershowitz, Janet Halley, and Charles Ogletree, published a statement in the Boston Globe outlining their objections to the new sexual harassment policies and procedures. They stated that the mandated procedures “lack the most basic elements of fairness and due process, are overwhelmingly stacked against the accused, and are in no way required by Title IX law or regulation” (Volokh, 2014). Ultimately, Harvard Law, confronting a continued investigation and the threat of a potential loss of federal funding, agreed to revise its policies on sexual harassment and sexual assault (LU Staff, 2014). Sixteen Penn Law professors crafted an open letter that stated, “We do not believe that providing justice for victims of sexual assault requires subordinating so many protections long deemed necessary to protect from injustice those accused of serious offenses.” Specifically, the professors protested the absence of lawyers at the hearings, the lack of cross examination, and the failure to require unanimity of opinion by a three person university panel given the lower standard of proof to be utilized, among other things. They concluded that their concerns regarding fundamental fairness were not theoretical in nature, citing the documented cases of “a rush to judgment on charges of sexual misconduct” at both Duke University and the University of Virginia.

Princeton University was the last Ivy League institution to adhere to the clear and convincing standard and it, too, eventually succumbed in late 2014 in order to terminate a civil rights investigation by the DOE for using a higher standard of evidence than permitted by the “Dear Colleague” missive (New, 2014). Laura Dunn, executive director of SurvJustice, attributed the “pushback” of the elite institutions to “arrogance and ingrained male privilege” (New, 2014). A contrasting stance was adopted by Harvard law professor Janet E. Halley, who led the call to arms to challenge the OCR’s interpretation of Title IX. She deems the Title IX directives as “defective on every known scale of equal procedural treatment of parties,” and further observes, “I’m a leftist, but that means for me heterosexual men are just as important as lesbian feminists” (Duehren, 2015).

(c) Mandated procedures which negate the right of cross examination

In its “Questions and Answers,” the OCR specifically stated in F-6 that it “strongly discourages a school from allowing the parties to personally question or cross-examine each other during a hearing on alleged sexual violence.” Its rationale for such a prohibition against a time-honored requisite of fairness is that it might be deemed “traumatic or intimidating” to the complainant. Further, the OCR “threatened schools that allow such cross-examination—’the greatest legal engine ever invented for the discovery of truth,’ as the Supreme Court has repeatedly called it—with a charge of perpetuat[ing] a hostile environment” (Taylor & Johnson, 2015).

(d) Are rights against double jeopardy and self-incrimination threatened?

Critics urge that the OCR “Dear Colleague” mandates have introduced a form of double jeopardy by permitting accusers to appeal not-guilty findings (Taylor & Johnson, 2015). Additionally, the OCR has encouraged schools “to re-examine an acquitted student without notice to him or her until the second investigation begins” (Henrick, 2013). Further, rights against self-incrimination may be eroded in the context of university hearings. Stephen Henrick, in a recent law review article entitled “A Hostile Environment for Student Defendants: Title IX and Sexual Assault on College Campuses,” citing Paul E. Rosenthal, notes that:

Because college disciplinary boards generally do not afford a right against self-incrimination, the accused may be forced to testify or face expulsion. Statements made by the accused during the hearing, or to the investigating dean, may then be used against the student in the criminal case, even though he could not have been forced to testify in the criminal trial itself. (Henrick, 2013)

(e) Do institutions of higher education serve as the appropriate forum to hear rape cases?

It is interesting to note that in a 2005 OCR Letter of Resolution to Buffalo State College, the government:

Determined that the College addressed the complainant’s allegation of sexual assault by assisting with the police investigation. The College was under no obligation to conduct an independent investigation of the alleged sexual assault, as it involved a possible violation of the penal law, the determination of which is the exclusive province of the police and the office of the district attorney. (Letter of Resolution, cited by Henrick, 2013)

The 2011 “Dear Colleague” letter clearly mandates a different approach. A recent article in The Chronicle of Higher Education directly poses the question in its title: “Should Colleges Be Judging Rape?” In addition to questioning the legal authority of the government to issue such mandates, some colleges are urging that the effort and monies devoted to comport with OCR mandates are unsustainable (Wilson, 2015). The article queries whether colleges, although deeply committed to ending sexual assault, are suited or equipped to judge whether a student committed rape. Some colleges are choosing to rely less upon professors and students to adjudicate such cases, and instead are hiring “high-priced lawyers, investigators, and former judges” (Wilson, 2015). Unlike a judicial arena, wherein lawyers, impartial judges and juries, and investigators separately address their roles, and where formal rules of evidence prevail, institutions “play several roles at once: investigator, judge, and support staff for both alleged victims and perpetrators” (Wilson, 2015).

Catherine Lhamon, Assistant Secretary for Civil Rights in the DOE, reportedly made the suggestion, deemed “preposterous” by Taylor and Johnson, that colleges and universities were competent to police alleged sex crimes because they “are equipped to investigate . . . plagiarism or drug dealing” (2015). The authors profess skepticism that such institutions would be equipped to handle as serious a criminal offense as drug dealing. And indeed, plagiarism is not a crime; nor is it even an illegality. It is an ethical offense, does not serve as a cause of action in litigation, and is routinely handled by the academic realm in stark contrast to sexual assault hearings with potential criminal repercussions (Latourette, 2010). An editorial in the National Review critiques “the conflation of very different phenomena (discriminatory academic policies, sexual harassment, rape) as though they were a unitary phenomenon” and concludes that “Treating rape as a matter of academic misconduct to be handled by deans of students rather than as a violent crime to be handled by police and prosecutors is a gross disservice both to victims and those wrongly accused, who are entitled to the full protections of the American criminal-justice process, including the presumption of innocence” (The Editors, 2015). And Janet Napolitano, University of California president, former head of Homeland Security, and a former prosecutor, warned in a 2015 article in Yale Law & Policy that colleges and universities have been pushed into serving as surrogates for the criminal justice system, and thus into an arena that falls “outside the expertise of colleges and universities” (Savage and Phelps, 2015).

(f) Procedures mandated by the OCR pose threats to academic freedom and First Amendment rights

One of the ways in which First Amendment rights might be compromised is suggested by the terms of the Resolution Agreement between the DOE and Harvard regarding sexual harassment complaints in which classroom speech is deemed harassing by the accuser. Bader suggests that this “might now give rise to interim measures like removal from class pending a hearing, despite the serious First Amendment problems that would entail,” since this constitutional protection as set forth in federal court rulings “generally prohibits viewpoint-based speech restrictions in the university setting” (2015). Further challenges to the First Amendment are exemplified in the experience of Northwestern University Professor Laura Kipnis, a feminist film studies professor, who in an essay published in the Chronicle Review decried, among other criticisms, the “sexual paranoia” created by activists exploiting Title IX. In response to her essay, two graduate students filed complaints against her with the Title IX coordinator for violating Title IX with her alleged retaliatory comments, which would have a “chilling” impact upon students’ ability to report sexual misconduct (Morrissey, 2015). While it would appear to be an instance of repression of academic freedom and freedom of expression, Northwestern did not dismiss this challenge; instead it hired two external attorneys to question Kipnis as to the existence, among other issues, of retaliatory intent in her Title IX published criticisms. This “Title IX inquisition,” as Kipnis later defined it, which denied her representation by counsel but did permit the presence of a nonparticipatory support person, concluded, premised on the preponderance of the evidence, that there existed no evidence of retaliatory intent.

The precedent this poses for destructive threats to academic freedom should not be minimized. Indeed, Harvard Law professor Jeannie Suk, in a piece in the New Yorker entitled “Shutting Down Conversations About Rape at Harvard Law” (2015), expresses her concern that her published criticism with that of 18 of her Harvard colleagues of the documentary “The Hunting Ground,” with regard to its portrayal of the likely guilt of a Harvard law student who was accused of rape, will be deemed “retaliatory,” thus provoking a Title IX investigation pursuant to that experienced by Kipnis. The faculty, including prominent black and feminist scholars, urged that the film provided a “seriously false” portrayal of a Harvard law student who was “vindicated by the law school and by the judicial proceedings” and was solely convicted of a misdemeanor nonsexual assault. Harvard Law subsequently reinstated him. The alleged female victim is quoted in an article in the Chronicle of Higher Education as regarding the statement of the faculty as retaliatory (Brown, 2015). Suk urges that fair process mandates that one examine both sides of a case; or, she queries, what is the point of the process? She notes that while questioning the mantra of “just believe” cloaks one as a rape denier, she reminds us that “always believe” led to the debacle witnessed on the Duke University campus, where eighty-eight faculty issued a public statement, which, rather than advocating respect of “due process rights of all concerned” (Wiley, 2006), encouraged protesters to make themselves heard concerning the “racism and misogyny” purportedly rampant on campus (Miller, 2014). Suk also cites the more recent University of Virginia case, in which Rolling Stone, failing to adhere to the most rudimentary standards of journalism, engaged in a lengthy critique of how the university mishandled a heinous rape case that never, in fact, occurred.

(g) Will “censure” and threats of withdrawal of federal funding prompt institutions of higher education to engage in a rush to judgment?

One commentator has noted that universities have greater incentive to convict in these sexual harassment and assault cases, for indifference to an accuser’s claim is actionable for money damages under Title IX. “Deliberate indifference to an accused student’s innocence, by contrast, is not actionable absent further proof discrimination occurred” due to his status as a male (Henrick, 2015). Moreover, while a large number of lawsuits have been brought by accused students premised on other causes of action including breach of contract, due process violations, failure to afford good faith and fair dealing, and negligence, with a few cases achieving success through pretrial settlements, most students do not emerge victorious (New, 2015).

Conclusion

To many critics, such as professors Halley of Harvard and Kipnis of Northwestern, the new sexual harassment and assault policies that have been crafted by colleges and universities in order to comport with the mandates of OCR Title IX compliance place too great a focus on women as victims, while failing to offer requisite protections for the accused. Under threat of being placed on a publicly available list of colleges being investigated for Title IX violations, or of having federal funding withdrawn, even universities reluctant to reduce the standard of evidence, or to satisfy other procedural requirements, will succumb. Advocates of women’s rights all desire equality of treatment and opportunity in the higher education setting. At the same time, as cautioned by the Penn Law signatories:

Due process of law is not window dressing, and we ignore the lessons of history at our peril. . . . We can and should provide protection and support for those who are subject to sexual abuse, and at the same time provide a fair hearing process that is calculated to yield reliable factual determinations. Ultimately, there is nothing inconsistent with a policy that both strongly condemns and punishes sexual misconduct and ensures a fair adjudicatory process. (Kruth, 2015)