Following its investigation, OCR determined that the Law School’s current and prior sexual harassment policies and procedures failed to comply with Title IX’s requirements for prompt and equitable response to complaints of sexual harassment and sexual assault. The Law School also did not appropriately respond to two student complaints of sexual assault. In one instance, the Law School took over a year to make its final determination and the complainant was not allowed to participate in this extended appeal process, which ultimately resulted in the reversal of the initial decision to dismiss the accused student and dismissal of the complainant’s complaint.
During the course of OCR’s investigation, the Law School adopted revised procedures that use the “preponderance of the evidence” standard for its sexual harassment investigations and afford appeal rights to both parties, in compliance with Title IX. The Law School also complied with the Title IX requirements relating to the designation of a Title IX Coordinator and publication of its non-discrimination notice.
Read more here, and the resolution agreement can be read here.
Feminist Philosophers 
I think if the law school failed to provide with the very reasonable requirement that complaints be responded to promptly and equitably, then they were in violation of Title IX and should be suitably sanctioned. However, the continued insistence of the Department of Education’s Office of Civil Rights that schools need to use a “preponderance of the evidence” is disgraceful. It would be one thing if it was legislatively or judicially mandated; I would disagree with it but it would have at least have a more legitimate authority.
But this is basically a very small group of federal bureaucrats who are imposing their narrow policy viewpoints and philosophies onto schools by using the threat of the withdrawal of federal funds, with insufficient oversight. Because of the OCR’s readiness to exercise that nuclear option the schools are being placed in an impossible situation. Hopefully one of them will actually force the matter into federal court where the OCR’s position will be subjected to actual legal scrutiny.
Why must it be legistatively or judicially mandated to be legitimate? In the U.S., administrative law is a legitmate authority. Do you take issue with the U.S. legal system more broadly? I’m also entirely at a loss for why you should think that the OCR has exhibited any readiness to exercise that nuclear option given that in the entire history of Title IX it’s never yet been exercised. As for the preponderance of the evidence standard, given that any sanctions a university might impose on its students are not in any way comparable to criminal prosecution, again, I wonder if you take issue with the U.S. legal system more broadly. Do you think that civil cases should not operate as they do under a preponderance standard?
Philodaria:
“Why must it be legistatively or judicially mandated to be legitimate?”
In a democratic republic, ultimate authority lies with the voters. Legislators are voted in, and judges are appointed but must be confirmed by the legislature. Federal employees are almost always either appointed or hired by someone who was appointed. That adds additional layers between the voters and the exercise of statutory authority.
“In the U.S., administrative law is a legitmate authority.”
Agreed; but neither Title IX nor the federal regulations implementing it impose a “preponderance of the evidence” standard. Agencies are not the final arbiters of how Federal law is to be implemented. In this case, the “preponderance of the evidence” standard was suddenly created in the 2011 “Dear Colleague” letter and is justified through this passage:
“The Supreme Court has applied a preponderance of the evidence standard in civil litigation involving discrimination
under Title VII of the Civil Rights Act of 1964 (Title VII), 42 U.S.C. §§ 2000e et seq. Like Title IX, Title VII prohibits
discrimination on the basis of sex. 26 OCR also uses a preponderance of the evidence standard when it resolves
complaints against recipients. For instance, OCR’s Case Processing Manual requires that a noncompliance
determination be supported by the preponderance of the evidence when resolving allegations of discrimination
under all the statutes enforced by OCR, including Title IX.27 OCR also uses a preponderance of the evidence standard
in its fund termination administrative hearings . . . hus, in order for a school’s grievance procedures to be consistent with
Title IX standards, the school must use a preponderance of the evidence standard (i.e., it is more likely than not that
sexual harassment or violence occurred).
I don’t know how this reads to non-lawyers, but to a lawyer this is incredibly flimsy on its face. OCR is confusing two different things: civil rights actions against universities, and disciplinary actions taken by universities. One type of procedure is fundamentally different than the other.
“I’m also entirely at a loss for why you should think that the OCR has exhibited any readiness to exercise that nuclear option given that in the entire history of Title IX it’s never yet been exercised.”
Because the person in charge of the OCR has promised that it is not an empty threat and she has publicly stated that she has put that option on the table several times:
http://www.huffingtonpost.com/2014/07/14/funding-campus-rape-dartmouth-summit_n_5585654.html
“As for the preponderance of the evidence standard, given that any sanctions a university might impose on its students are not in any way comparable to criminal prosecution, again, I wonder if you take issue with the U.S. legal system more broadly.”
Being expelled from university because you were found to have committed a sexual assault will impact the respondent’s life far more drastically than, say, losing a contract case or an employment discrimination case. The investigatory and procedural sequence is also far more similar to a criminal case than a civil case. It is in, effect, a university trying to find if someone committed a heinous crime, and then if the (usually untrained) investigatory body thinks it’s slightly more probable than not, then punishing them for it. No, it doesn’t involve prison time but I think I would personally prefer to be jailed two weeks for a less repulsive crime than expelled and marked for life for a more repugnant one, even if jail is not involved.
“Do you think that civil cases should not operate as they do under a preponderance standard?”
Civil cases do not universally operate under a preponderance standard; many operate under a clear-and-convincing standard, particularly where the consequences to an individual defendant are severe, and where the adverse parties typically have difficulty in establishing evidence. Civil cases that use a “clear and convincing” standard include but are not limited to many types of administrative hearings and other actions.
Finally, I will note that “clear and convincing” is not “beyond a reasonable doubt.” I am not arguing that sexual assault disciplinary proceedings should follow a criminal burden of proof, but “more likely than not” is not the way to go.
I don’t understand your description of administrative law. E.g., see here:
“Agencies are given the authority to issue and enforce regulations by acts of Congress. This delegation of authority may be general or specific. For an example of a general delegation of authority, see the National Labor Relations Act provision giving the National Labor Relations Board authority to “rules and regulations as may be necessary” to implement the act. (29 U.S.C. §156). Contrast that general statement with the more specific delegation of authority in the Organic Foods Product Act of 1990, which gives the Secretary of Agriculture the authority to develop “detailed regulations . . . [for] the implementation of the standards for livestock products” (7 U.S.C.§ 6509 (g)).”
https://lib.law.washington.edu/content/guides/adminus
Also, many students who are found guilty of assault through Title IX processes are not expelled, nor is this information always made public by way of transcripts, etc. Further, sexual harassment isn’t a crime, is it?
I’m assuming your post is aimed at me, noetica.
Yes, agencies are given the authority to issue and enforce regulations; however, implementation of those regulations requires specific procedural steps, culminating in their publication in the Code of Federal Regulations. Under the Administrative Procedure Act of 1946, agencies are required to notify the public of proposed rulemaking and allow public comment on the proposed rule. An agency employee can’t just implement new substantive rules through fiat the way they did in the 2011 letter.
Yes, twbb, it was. So far as I understand it, there is rather a spectrum of rule making processes, and that different forms of rule making do not require the same procedural steps.
Yes, I’m fully aware that Lhamon has said that withholding federal funds is on the table. I’m also aware that she’s only been in her position for ten months, and, again, it has never actually happened in the history of Title IX. So, whatever readiness there may be to exercise that option, it is so far quite new, and still not yet put to use. And I know enough people who have been sanctioned for sexual harassment and who have gone on to enjoy incredibly successful careers that I am disinclined to believe that being sanctioned for sexual harassment is really so bad as losing your average civil suit. Yes, being expelled from a university for assault is a serious consequence, but again, I know folks who have been, and who have ultimately just transferred universities.
Of course it would be completely horrible for that to happen if one were in fact innocent. And of course we need to take that possibility seriously, and take measures to ensure we mitigate the risk of that happening. But given that it seems most of those who commit assault are serial predators, and given that it’s also incredibly awful to be assaulted, terrible to have to attend school with your assailant, in addition to all of those other horrifying factors that come with failures to sanction those who have engaged in sexual misconduct and failures to protect your communities from harm, I fail to see reason to think the preponderance of the evidence standard in particular is “disgraceful.” Reason to want to make sure that investigations are thorough? That both sides have ample opportunity to present evidence, etc.? Certainly.
Philodaria, my main complaint is not about “harassment,” it’s about “sexual assault” which is most definitely a crime and I don’t think people who have been found to have committed it go on to fantastic careers, with the possible sole exception of Roman Polanski. I think, frankly, all disciplinary issues should require a clear and convincing standard, but I am not going to lose sleep if preponderance of the evidence is used for sexual harassment. Sexual assault is a completely different thing.
twbb makes excellent points with respect to (1) the threat of withdrawing funding and (2) the imposition of the preponderence of evidence standard, which together give universities both the motive and the opportunity to reach biased findings of guilt. In reply to philodaria’s response that measures should be taken to counteract the possibility of false convictions, in fact the exact opposite is happening.
The is because universities have been given the means to secure wrongful convictions due to (3) the adoption of the compliance agency single investigator model (creating a conflict of interest not unlike combining the judge, prosecutor, police, and internal affairs) and (4) shifting of the definition of misconduct (as in affirmative consent regulations).
Although twbb draws a distinction between assault and harassment, so that the less severe offence may be subject to a lower standard of evidence, what is now happening is they are conflated in practice, given the demand by activists for expulsion/firing even in harassment cases. Broadening of criteria for defining misconduct is one of the factors (along with self reporting rather than random sampling) identified as being at work in criticisms of the studies resulting in the “1 in 5” statistics which motivate these policies.
The statement by 28 HLS profs against the OCR policies their university’s position was published here:
http://www.bostonglobe.com/opinion/2014/10/14/rethink-harvard-sexual-harassment-policy/HFDDiZN7nU2UwuUuWMnqbM/story.html
I am quite shocked that anyone thinks that the “threat” of withdrawing federal funds is motive to reach a biased finding of guilt.
To be clear, the “threat” (which again, has never once been exercised, and which the OCR itself is campaigning to minimize by asking for broader possible sanctions which they might impose for non-compliance) is why universities might be pressured to reach resolution agreements with the OCR. That’s an entirely different matter from findings in individual cases. In fact, the same “threat” gives universities motive to be fair in individual cases as either alleged victims or alleged perpetrators can file Title IX complaints (or lawsuits) against the university if they are treated unfairly in the process.
And yes, the conflict of interest is certainly a problem–but in every single Title IX case that I have any personal knowledge of (which is many) where that conflict of interest has been an apparent problem it has been because the university seeks to protect it self first and foremost, rather than its community members. In fact, if you do some digging, it is not at all uncommon for those who are Title IX coordinators with legal backgrounds to come from a background in defending employers against Title VII claims. This is not a bias in favor of those who allege to be victims.
And with regard to the Harvard letter, I would encourage you to read the response from HLS students here: http://www.bostonglobe.com/opinion/2014/10/31/going-harvard-privilege-but-safety-right/ng14NdYb4lT5W7PejkM45J/story.html
Here’s another response worth reading: http://carolineheldman.me/2014/10/17/harvard-law-professors-join-the-anti-rape-movement-backlash/
I think most of us will agree with philodaria that universities are primarily interested in protecting their own interests rather than pursuing justice. But in protecting their own interests against Federal sanctions, universities are still motivated to side with the complainant in was unreflected in the overall evidence or widespread norms of conduct. Because to do otherwise would appear “biased” given the lowered standard of evidence needed to convict, or given the assymetric assignment of responsibility in cases of drunken hook ups.
Anonymous, what’s the evidence for that? The standard of evidence is more likely than not. How is that biased in favor of complainants? Again, are civil court cases which use the preponderance of the evidence standard biased in favor of plaintiffs? Also, let’s be clear: There is a very large difference between “drunken hook ups” and being incapacitated by alcohol. As for how universities are protecting their own interests at the expense of those who allege to be victims of sexual assault, please see this report from Outside the Lines on how athletic departments are often involved in Title IX complaints involving student athletes: http://espn.go.com/espn/otl/story/_/id/11381416/missouri-tulsa-southern-idaho-face-allegations-did-not-investigate-title-ix-cases