The AAUP recently released a report on Title IX for a comment period (summary version here). There are two points in particular where it appears as if myth and speculation are presented under the guise of fact, and I think it’s incredibly important for the academic community to be clear on where things actually stand.
First, from the AAUP’s report on the issue of the Office for Civil Rights’ interpretation of Title IX as requiring sexual discrimination complaints be adjudicated according to a preponderance of the evidence standard:
OCR’s 2011 Dear Colleague Letter (DCL) went further, mandating an evidentiary standard that conflicts with due process protections of faculty and students. In a shift of enormous significance the DCL prohibited the use of the standard calling for “clear and convincing” evidence (highly probable or reasonably certain), and replaced it with a lower standard: that there need be no more than a “preponderance of evidence” (more likely than not) to assess sexual violence claims and all sexual harassment claims. The DCL explicitly noted that university procedures using a “clear and convincing” evidentiary standard were “not equitable under Title IX.” Although it marked a substantial change in procedures, OCR did not engage in the federal administration rulemaking public notice and comment process prior to issuing this 2011 DCL. The “preponderance of evidence” standard is a new mandate, however, even though the OCR describes the DCL only as a clarification of its 1997 and 2001 Guidances, which had followed federal rulemaking requirements.
The OCR has done more than merely “describe” the 2011 DCL letter as a clarification, though. Rather, Catherine Lhamon explained why the OCR believes the 2011 Dear Colleague Letter was not a substantial change of procedure as follows:
The standards outlined in the 2011 DCL stem from the Department’s Title IX regulations, including but not limited to, the requirement that educational institutions adopt “grievance procedures providing for prompt and equitable resolution” of complaints. Prior to the 2011 DCL, OCR had determined in letters of findings issued during multiple Administrations that in order for a recipient’s procedures to be “equitable,” they must use a preponderance of the evidence standard (i.e., more likely than not) to determine whether sexual violence has occurred. As OCR’s practice in these cases confirms, it is Title IX and the regulation, which has the force and effect of law, that OCR enforces, not OCR’s 2011 (or any other) DCL. OCR’s 2011 DCL simply serves to advise the public of the construction of the regulation it administers and enforces.
But, more to the point, if Title IX complaints were held to a higher standard than a preponderance of the evidence when other civil rights claims are adjudicated by exactly that standard, then it would follow that complainants would be held to a higher standard, i.e., disadvantaged, on the basis of sex, i.e., they would be subject to sexual discrimination.
Why are civil rights claims adjudicated by a preponderance of the evidence standard? Nancy Cantalupo explains:
Civil rights systems require the preponderance standard because it is the most equal of all standards of proof. First, the preponderance standard allows survivors to prevail on their allegations as long as just over fifty percent of the evidence supports their allegations. Second, the preponderance standard gives as equal as possible presumptions of truth-telling to both parties, whereas the standards used by the criminal system such as “beyond a reasonable doubt” or even “clear and convincing evidence” give a heavy presumption in favor of the accused. The criminal standards can be taken—and studies suggest that many victims do take them this way—as a societal belief that victims lie. Sexual violence cases are often credibility contests. Therefore, a process that builds a strong presumption in favor of the accused can be seen as a symbol that we believe that the likelihood that victims across the board will lie is so much greater than that perpetrators will lie that we have to build safeguards against that lying into the very structure of our proceedings. Such an assumption is manifestly unequal because giving presumptions in favor of one side or the other is by definition treating them unequally.
Some of the push for higher standards of evidence in the broader political narrative surrounding this issue seems to confuse the nature of civil rights complaints stemming from behavior that may also count as criminal conduct with the nature of criminal complaints themselves. Title IX complaints alleging sexual violence are not criminal complaints, and given the purpose and content of Title IX, they ought not be treated as such either. Again, Cantalupo explains:
Suggestions that gender-based violence violating Title IX can be punished like criminal offenses and that Title IX proceedings should therefore follow the procedures of the criminal justice system conflate Title IX with criminal laws against rape and sexual assault. This conflation fundamentally undermines Title IX’s central purpose: to protect and promote equal educational opportunity for all students, including both the alleged perpetrators and the victims of gender-based violence.
By prohibiting gender-based violence as a form of sex discrimination, Title IX recognizes that such violence is both a cause and a consequence of gender inequality, an insight that has been understood throughout the globe for many decades. Because, as the Secretary General of the United Nations has stated, “[v]iolence against women is a form of discrimination and a violation of human rights . . . [that] can only be eliminated . . . by addressing discrimination, promoting women’s equality and empowerment, and ensuring that women’s human rights are fulfilled,” Title IX’s main goals are creating rights and remedies for victims and ending not only harassment and violence but also its discriminatory effects.
In contrast, the criminal law is not concerned with establishing equality, and it gives few, if any, rights to violence victims. A primary goal of the criminal law is to keep the abstract community as a whole safe from violence, which it achieves, in part, by incarcerating criminal actors while at the same time providing safeguards to avoid punishing innocent defendants. As a result, criminal cases are structured as adversarial proceedings between a defendant and the whole community, represented by the state’s prosecutor. Moreover, because defendants face potential incarceration, death, and the loss of legal rights, the state must meet high procedural standards designed to protect defendants’ liberty against unjust exercises of the government’s immense power to punish. Therefore, the criminal system is primarily focused on the defendant’s, not the victim’s, rights.
Second, again, from the AAUP report, this time on the purportedly threatening nature of the way the OCR wields its power:
OCR’s approach to compliance has become increasingly punitive. These punitive measures belie the insistence of OCR administrators that their recommendations do not have the force of law. OCR’s recent or current investigations of more than 130 colleges and universities have taken on an adversarial character, accompanied by an increasing fear that OCR may wield its power to initiate proceedings to withdraw federal funding. The threatening nature of OCR’s actions is fueled by the ever-broadening scope of its investigations, both in terms of the number of universities under investigation and the breadth of the OCR’s investigation at each school.
What the AAUP fails to grapple with is that the number of OCR investigations has been steadily rising, not because the OCR is aggressively seeking out institutions to investigate, but rather because students are increasingly coming to understand their rights under the law, and are increasingly exercising them through seeking assistance from the OCR by filing complaints. It’s relatively rare for the OCR to initiate an investigation itself – and to those familiar with these cases, “punitive” hardly seems like an apt description. Take the University of Notre Dame, for instance, which entered into a resolution agreement in 2011 after the OCR initiated an investigation on account of news that a student reported she had been assaulted, and then committed suicide 10 days later, still before campus police interviewed her alleged assailant.
Since that resolution agreement was implemented, multiple students have alleged the university continues to violate Title IX. Two complainants wrote in a letter sent on February 25, 2016 to the Senate HELP Committee, that their complaints have (now) been under open investigation by the OCR for more than 900 days:
We say this not to impugn the OCR’s handling of our complaints. We will wait as long as it takes for the right result, we would rather their investigation be thorough than cursory, and we believe they’ve done an admirable job operating with what little resources they have. We say it instead to underscore the absurdity of the increasingly popular narrative that the OCR is zealously holding institutions hostage to guidance of questionable legal status under threat of revoking federal funds.
Developing a full picture of the realities of Title IX enforcement would require listening to those who have filed complaints, not merely those who have been subject to investigation, nor outside groups with political interests at stake. When we filed our complaints, Notre Dame was already under a resolution agreement with the OCR — a resolution agreement that has been in place since the conclusion of an institutional review prompted by the suicide of Lizzy Seeberg; a resolution agreement that we are alleging Notre Dame violated, repeatedly.
Since that letter was sent, two further complaints against Notre Dame have been made public:
Two student-survivors are ready to speak out about the Title IX complaints they filed against University of Notre Dame for failing to address a repeat perpetrator who reportedly threatened, sexually harassed, physically assaulted, and/or sexually assaulted approximately seven Notre Dame and St. Mary’s College students while on campus.
“I cannot imagine any other student suffering through a similar struggle for justice to ensure their own safety on campus,” said N.L., one of the complainants, who is keeping her name confidential given her concerns about retaliation. “The Notre Dame administration sent me through a degrading and unbalanced misconduct hearing instead of a Title IX proceeding that would give me equitable rights as a victim. A Title IX investigation only occurred after I reported to a ROTC captain.” N.L. believes that, despite repeated assurances from the Notre Dame that it took her complaint “seriously,” they weren’t willing to punish the perpetrator.
This, in addition to a sexual harassment lawsuit filed last fall by a student who alleged that an academic coach pressured him to have a sexual relationship with her daughter
Is this a picture of aggressive enforcement? If this is punitive, where, exactly, is the punishment? So far, it seems there has been none at all, never mind an inappropriate one.
Now, the AAUP wants to encourage universities to be vigilant against developing harassment policies that are overly broad and infringe on academic freedom. I don’t dispute the importance of academic freedom — but I do want to encourage the AAUP to consider the ways in which sexual discrimination can infringe on the rights of victims, including victims’ own rights to academic freedom, as well as the broader losses to academia when we allow discrimination to thrive:
The problem of serial sexual predators who move from campus to campus—of “open secrets,” or known problems within a specific discipline—has become an issue of increasing concern . . . For each serial predator, there are multiple—even dozens, in some cases—scientists, writers, thinkers who have left the field that they love, whose talents have been lost, because of the discrimination they have been subject to. Clearly, if our goal as a nation is to provide equal access to educational opportunities, to tap the talent of the widest and most diverse pool possible, to avoid the brain drain that is caused by widespread sexual misconduct in academia, we need to talk about the problem – to break the unwritten code of silence implied by the norms of collegiality. Higher education needs the Department of Education to continue to actively provide guidance, clarification, and support. We are a close-knit family, and cannot clean up our own problems without external support.
Brian Leiter has written a response to this post here. There are two points in particular that he raises that I want to respond to. The first is this: “The pseudonymous author at FP asserts ‘that the number of OCR investigations has been steadily rising, not because the OCR is aggressively seeking out institutions to investigate, but rather because students are increasingly coming to understand their rights under the law.’ No evidence is cited for the latter proposition, and it seems to me a bit misleading as to what’s more likely happening. . .” It’s true I didn’t provide evidence, but that’s because I thought this was general knowledge. Over the last few years there has been a growing network of student activists working to familiarize themselves with the law, and the connection to the increase in Title IX complaints processed by the OCR is explicit. For instance, Andrea Pino and Annie Clark, who were students at UNC, together created a network that resulted in their organization, End Rape on Campus, which assists students in filing with the OCR (there are other organizations created by student survivors too, like Know Your IX).
Second, Brian writes, “As I noted originally, under Title VII, employment discrimination claims are adjudicated by a preponderance of the evidence standard, so it is true that until 2011, Title IX complainants about sexual violence and assault did have to satisfy a higher standard of proof. But it is absurd to suggest that constitutes sex discrimination, since the application of the standard is completely gender neutral, just like Title IX itself. (Men are also victims of sexual violence, after all, and have the same standing to bring Title IX complaints as women.)” My claim though had nothing to do with which gender those who bring complaints forward belong to. Brian points out that I am not an attorney, and that’s true, but as noetika pointed out in comments, this is something that Wendy Murphy, who is an attorney, has also said.
Now, I don’t know Wendy Murphy, and so I can’t speak to her reasoning, but here’s what I was thinking: In Jackson v. Birmingham Board of Education the Supreme Court determined that retaliation constituted a form of sex discrimination under the law. Jackson had been removed as a girls’ basketball coach after complaining that the team was subject to unequal treatment. The court wrote,
In all of these cases, we relied on the text of Title IX, which, subject to a list of narrow exceptions not at issue here, broadly prohibits a funding recipient from subjecting any person to “discrimination” “on the basis of sex.” 20 U. S. C. ß1681. Retaliation against a person because that person has complained of sex discrimination is another form of intentional sex discrimination encompassed by Title IX’s private cause of action. Retaliation is, by definition, an intentional act. It is a form of “discrimination” because the complainant is being subjected to differential treatment. See generally Olmstead v. L. C., 527 U. S. 581, 614 (1999) (KENNEDY, J., concurring in judgment) (the “normal definition of discrimination” is “differential treatment”); see also Newport News Shipbuilding & Dry Dock Co. v. EEOC, 462 U. S. 669, 682, n. 22 (1983) (discrimination means “less favorable” treatment). Moreover, retaliation is discrimination “on the basis of sex because” it is an intentional response to the nature of the complaint: an allegation of sex discrimination. . .
Jackson was not complaining that he had been subject to sexual discrimination on account of his sex, but rather that he was subject to discrimination because he had been subject to unfavorable treatment in the course of raising a concern about sexual discrimination – and the court agreed. One can certainly doubt whether or not the court should be read quite so literally that differential treatment as a response to a sex discrimination complaint because it is a sex discrimination complaint is unlawful, but it hardly seems absurd.
ANOTHER UPDATE: I’ve written a follow-up on this here.