Title IX: (Some of) What the AAUP Left Out (Updated)

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.

UPDATE:

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.

28 thoughts on “Title IX: (Some of) What the AAUP Left Out (Updated)

  1. Thanks for spelling this out and providing all these links. I found it particularly helpful to have the explanation of why people argue that using the preponderance of evidence standard is more fair to everyone in non-criminal proceedings.

  2. “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.”

    I’m not sure how that follows. It would be discriminatory if a man bringing a Title IX complaint were held to a different standard from a woman bringing a Title IX complaint. But if the proof standard is higher for Title IX than for other civil-rights issues, while being the same for all Title IX complainants, that’s not discriminatory (whatever its other virtues or vices). Complainants aren’t being “disadvantaged, on the basis of sex”; they’re being disadvantaged on the basis of being Title IX complainants rather than complainants under some other civil rights regulation.

    I guess you could make a case for this being de facto discrimination because Title IX complaints are predominantly brought by women. But I think that would take work to establish, – it wouldn’t be obvious on the face of things.

  3. Why would it follow, if Title IX complaints were held to a higher standard of proof than other civil rights claims, that “complainants would be held to a higher standard, i.e., disadvantaged, on the basis of sex”? I don’t think that would follow.

    I can see why “beyond reasonable doubt” isn’t a good standard for universities to use in sexual violence cases, but “preponderance” does not seem right to me. Certainly, defendants don’t face death or incarceration, but the penalties can be pretty awful. No more awful than they should be for the *guilty*, but awful enough for the presumption of innocence to be more than a feather.

    Can someone give an example of other civil rights claims that universities adjudicate, besides Title IX? Also, what in practice does “clear and convincing” amount to? The only legal definitions I can find tell me no more than that it’s between “preponderance” and “beyond reasonable doubt”.

  4. Yes I think many people do not understand the difference between the state using its huge resources of justice and policing to bring a criminal charge against an individual, and an individual bringing a complaint in a civil tribunal. It may seem obvious when I put it that way, but some people do seem genuinely confused (while others perhaps don’t want to think clearly).

  5. Ah! Yes, ADA. Although those are typically grievances against the institution, not against an individual, right? Are there ADA cases in which a defendant lost her job or was expelled?

    I didn’t mean to be advocating penalties for victims; I hope nothing I said came off that way.

    I will try to look into this myself instead of just asking you questions, philodaria.

  6. Jamie, I’m less familiar with the ADA than I am Title IX, but at my current institution and at my previous institution, ADA grievances operate much like Title IX grievances — that is, they can be filed internally against individuals when someone believes they have been subject to discrimination, and should the university fail to handle issues of discrimination in accordance with the ADA (either generally, or in a particular complaint) one can file a complaint with the DoJ much like one would file a Title IX complaint with the DoE.

  7. Thank you, noetika. (WordPress would like me to call you “notice”.)
    I do think I should find out some more about these things before commenting further.
    Oh, also — of course, I had not yet seen David Wallace’s comment when I submitted my 10:39 #3. I can now only vaguely see the relevance of Jackson v. Birmingham. I’ll ask an expert about that case, too, so that I understand the point better.

  8. Oh, I didn’t take you to be advocating for penalties for victims, but you wrote the penalties are awful enough you think there should be a stronger presumption of innocence (I think it’s actually quite a lot more than the difference of a feather when you look at how these cases are adjudicated in practice, but…) and my point is that the it is in fact quite awful for victims when universities fail to take action, too, and so if we’re going to consider risks, I want to make sure we’re keeping all parties in mind.

  9. The point about equity across complaint procedures is one that Wendy Murphy has made too:

    “But Wendy Murphy, a lawyer who has helped students file federal discrimination complaints against several universities, said colleges use a preponderance-of-the-evidence standard in dealing with other complaints of civil-rights violations, and so would be discriminating against women by forcing them to meet some higher burden of proof. ‘Equity matters,’ she said.”

    http://chronicle.com/article/Education-Dept-Defends-Its/235370

  10. Having been involved in my institution’s last two revisions to its sexual misconduct policy, since the first “Dear Colleague” letter, I want to raise an issue that I think gets overlooked in discussions that focus entirely on the standard of evidence.

    Universities still have a huge amount of local discretion in how they structure the judicial proceedings for these cases. They, not the state, get to choose whether the accused will be able to hear all the evidence presented against them, get to question the accuser directly, and so on.

    The reason this is relevant is that that discretion, combined with a preponderance of evidence standard, actually gives universities the ability to stack the deck in favor of one side or the other even before the case is heard. If the accused isn’t made aware of some evidence the accuser brings, if they’re not allowed to call certain witnesses, if they’re not allowed to ask certain questions, then that puts them on a less than 50/50 stance from the beginning of the case, which means that in cases that might usually be considered indeterminate, they end up losing.

    By the same token, universities who have a stake in protecting certain accused will be able to stop the accuser from asking certain questions, bringing certain evidence, et cetera.

    Preponderance of the evidence is a viable standard when the two sides of the case start out on an even footing. In the context of university-run judicial proceedings, the structures of which are almost entirely up to university discretion and often made more so by deliberately flexible misconduct-policy language, that even footing is unicorn-rare. Athletes and grant-getting researchers can be protected, or the accused in cases with genuinely ambivalent evidence can be thrown to the wolves. The numbers can be juggled at the expense of even the presence of justice.

    The current system is likely to bring the numbers of guilty findings more in line with the true number of guilty parties, but that’s not at all the same thing as saying that it’s likely to increase the number of guilt people being found guilty, or innocents exonerated.

    My own preference would be for a preponderance of evidence standard combined with fairly rigid nationwide guidelines, and external audits, for the structures of the proceedings. But I also sympathize with those who think that the current case is such an abusable mishmash that we’d be better off going back to the previous standards of evidence.

  11. Thank you for raising this — it’s an important point. The OCR has issued this, which provides some guidance (that complainants and respondents must have equal opportunity to present witnesses, evidence, and so on), but, of course, “equal opportunity” is consistent with “no opportunity,” so long as it applies to both parties: http://www2.ed.gov/about/offices/list/ocr/docs/qa-201404-title-ix.pdf

    This is a problem irrespective of the standard of evidence used, though.

  12. Jamie at 9: yes, there are examples of ADA cases in which the accused has lost his or her job after being found guilty of discrimination, without a court trial, or any hearings outside the university. I’m familiar with two, but can’t name the universities. Dig into it. You’ll find them. Philodaria (and Wendy Murphy) are correct on the fact that one of the strongest arguments for the preponderance of evidence standard is equity for various groups who are potentially (and have been historically) subject to discriminatory behavior, across the gamut of civil rights laws.

    Fool at 14: The previous system was also an abusable mishmash of differently applied standards — perhaps even more so than now. I’m with you on the call for external auditing, though. And I’d give auditors the power to, e.g., search a university’s database of emails for search strings relevant to a case — something that an internal committee cannot or at least typically does not do, but that can produce significant results when multiple members of an administrative team are conspiring to protect or cover up.

  13. Ted Parkin, I did a small amount of searching but only found ADA cases against colleges and universities. (It was interesting — it had not occurred to me that replacing old technologies with new digital tech, like Canvas or Kindle, can make life much more difficult for students with certain disabilities.) And these were court cases. Why is it that you can’t identify the universities, if I could find them myself? Anyway, I’ll take your word for it.
    There *have* been Title VI cases, but it is very rare for someone to bring a Title VI charge against another student, or a professor, is what I have found. Still looking into this though.

    Philodaria at #12: the suffering of victims, though, isn’t used to lower the presumption of innocence in a criminal trial, so I don’t think it should be used in that way in disciplinary hearings. As Brian Leiter posted, Title IX-based disciplinary hearings are in some ways more like criminal trials, even though in other ways they are more like civil trials. That’s why something more stringent than Preponderance seems appropriate to me.

  14. Jamie, I fail to see the relevance to what you say to the arguments. Why, exactly, should what is or is not used in criminal proceedings to lower the standard of evidence be relevant to whether or not victims’ rights are respected in Title IX cases? The point of Title IX is precisely to address discrimination and it’s effects in order to ensure equal access and opportunity in educational contexts, so it seems to me as if the suffering of victims when universities fail to act is highly relevant. (And yes, I know that Brian said that the consequences of a finding of fault are more like a criminal case than a civil one, but I actually don’t grant the point — that’s a claim in need of argument, and I have a very hard time see what that argument could plausibly be if one is familiar with prisons, among other things.)

  15. Oh! Okay. I thought the relevance was clear. I will try to explain.

    “Why, exactly, should what is or is not used in criminal proceedings to lower the standard of evidence be relevant to whether or not victims’ rights are respected in Title IX cases?”

    It is relevant to what should be used in Title IX actions against individuals as the standard of evidence. It isn’t relevant to other aspects of victims’ rights, in either Title IX actions or criminal prosecutions.
    As you say, the point of Title IX is to ensure or promote equal access in education. Insofar as laws have a single point, the point of criminal laws is to protect citizens from harm. The suffering of victims when the state fails to punish defendants is, therefore, similarly relevant to the point of criminal laws. As far as the points of the branches of law are concerned, then, suffering of victims is equally germane. On the face of it, whatever reason one has to take that suffering into account in deciding whether to raise or lower standard of evidence in one counts also in the other.
    So, that’s why it’s relevant.

    I don’t know what Brian Leiter had in mind. But, one way in which a finding of guilt in a sexual harassment or assault hearing is more like a criminal conviction is that the penalty can severely damage someone’s life. Another is that there is no question of restitution, restoration, of making the victim whole.
    I think one good reason to use Preponderance in a typical civil case is that such a case is a dispute about ownership of some property, or custody of a child, or else about who has to bear a certain cost. In those cases the defendant and plaintiff are symmetrically placed: an incorrect verdict will mean someone is deprived of what is rightfully theirs, the same no matter which incorrect verdict is rendered. But that symmetry is not present in a college’s proceedings against one of its students accused of violating the rights of another. Nor, obviously, is it present in a criminal case. So, that reason for using Preponderance is not present in criminal cases or Title IX proceedings against an individual.

  16. “The suffering of victims when the state fails to punish defendants is, therefore, similarly relevant to the point of criminal laws. As far as the points of the branches of law are concerned, then, suffering of victims is equally germane.”

    If the suffering of victims were equally germane, one would think victims would be parties to criminal complaints, but they’re not. When it comes to Title IX, though, not only are victims party to the dispute but the law requires that they be treated equally as the accused.

    “But, one way in which a finding of guilt in a sexual harassment or assault hearing is more like a criminal conviction is that the penalty can severely damage someone’s life.”

    Lots of things can severely damage one’s life. Getting kicked out of school for plagiarism can severely damage ones life. Getting fired from one’s job for failing to perform your duties can severely damage one’s life. Getting raped, and having to continue to see your assailant on campus, can severely damage ones life. These things are not, though, relevantly like being found guilty of a serious crime.

    “I think one good reason to use Preponderance in a typical civil case is that such a case is a dispute about ownership of some property, or custody of a child, or else about who has to bear a certain cost. In those cases the defendant and plaintiff are symmetrically placed: an incorrect verdict will mean someone is deprived of what is rightfully theirs, the same no matter which incorrect verdict is rendered. But that symmetry is not present in a college’s proceedings against one of its students accused of violating the rights of another.”

    I’m not sure why you think an incorrect verdict in Title IX cases does not have this feature. Isn’t a complainant owed a correct verdict? Consider this: http://dynamic.uoregon.edu/jjf/articles/sf2014.pdf

  17. Fool, strongly (like, maximally strongly) agree with you wrt the call for third party oversight. Here, here.

    Hi, Jamie. Thanks for your comments, here. I just wanted to chime in with respect to your comments about the symmetry issue. I take it you’re thinking something like, look, in civil cases it’s sort of a zero(ish) sum game — if you win, I lose, and vice versa. But not so in criminal cases (and in this way, also, not so for Title IX adjudications). If someone is found guilty, this doesn’t thereby undo the crime in question, and so to the extent that we’re trying to accomplish anything, all that is at stake is determining whether to impose a particular sanction on an alleged wrongdoer. And for that reason, your argument goes, we might consider Title IX proceedings as relevantly alike to criminal proceedings. So far, so good?

    Okay, I want to push back a bit against this thinking, and I’ll just do it by asking you to consider what it might be like for a complainant from whom their complaint is unable to be substantiated. I don’t need to stress that this doesn’t mean that the accused is in fact innocent — for e.g., Title IX complaints often concern allegations of sexual violence, and sexual violence is notoriously difficult to substantiate for all the familiar reasons. But even under certain hyper-idealized conditions — these complaints are supposed to be super discrete and confidential, so suppose that there are no national headline grabbing op-eds or blogosphere craziness about the student’s complaint, and further, it’s not even departmental gossip-levels of discussion. We ought to be able to say that that’s a *good* thing. But now, the accused is excused without sanction because the complaint could not be substantiated. What would life be like for that student? Now she has a faculty member who is free, with the professional, social, and structural order of power that faculty enjoy, to do whatever they like. The university of course will promise her that she will be protected from retaliation, but what does retaliation really look like? And what can they do to protect her?

    It should go without saying, but out of an abundance of caution I’ll add: I’m not saying that complainants ought to enjoy a recklessly low standard of evidence because any complainant, no matter what, ought to be shielded from the repercussions of filing that complaint. Not at all. I’m merely saying that it is far from obvious to me that the relevant symmetry is lacking in Title IX cases. Complainants have *a lot* on the line when it comes to what kind of findings they might expect, in filing. From what I understand about it, it’s a lot like risking your life.

  18. Regarding the issue being debates in comments 17-20 regarding what the standard of proof should be, I will simply copy and paste the arguments for the higher standard offered by my colleague Geoffrey Stone in the Huffington Post essay to which I linked, since he states the case quite adequately, and in a way that clarifies what the dispute should be about:

    To justify its insistence on the preponderance of the evidence standard, the Department of Education draws an analogy to civil actions in court. In the typical civil law suit for damages, whether the issue is a car accident, a breach of contract, or an assault, the standard is preponderance of the evidence. But this is a bad analogy.

    For a college or university to expel a student for sexual assault is a matter of grave consequence both for the institution and for the student. Such an expulsion will haunt the students for the rest of his days, especially in the world of the Internet. Indeed, it may well destroy his chosen career prospects. This is especially likely, for example, for law students.

    Moreover, the procedures used in these disciplinary hearings do not come close to those employed in civil actions, which involve judges, juries, rules of evidence, lawyers, discovery, and a host of other procedural protections designed to enhance the reliability of the proceedings. Even at their best, college and university disciplinary proceedings are a far cry from civil actions in terms of fairness to the accused.

    Thus, although the Department of Education may well be right that “proof beyond a reasonable doubt” is unnecessary in these circumstances because there is no risk of imprisonment or a formal criminal record, it is completely unfair, in my judgment, for a college or university to suspend or expel a student on the ground that he committed a sexual assault if the institution is only 51 percent confident that he did so.

    The Department of Education should either mandate the “clear and convincing evidence” standard in these situations, or it should at least leave the institutions free to choose which of those standards best fits their own sense of due process and justice.

    One might, of course, object that it is just as bad to “acquit” a guilty student as to “convict” an innocent one. Indeed, we cannot underestimate the emotional and psychological harm to the complainant if her charges are not acted upon. But this is true even in criminal prosecutions. Our core sense of fairness and justice always errs on the side of not erroneously punishing an innocent person. We do not sacrifice that principle even when the accusation is terrorism, murder, rape, or child molestation. We should not sacrifice that principle here.

  19. Hi Brian, as I’ve already indicated, I don’t think that is an adequate case for the higher standard. I am in the middle of a bunch of things right now, but I will put up another post on this soon — hopefully I’ll have time this evening.

  20. Hi Jane Lane,

    You are *exactly* right about the symmetry I had in mind. (Very gratifying.)

    But, I think the features you’re mentioning (showing that victims can also have a lot at stake) are also present in a criminal case, say a rape case, to make the parallel as close as possible. Have I missed something? So, that suggests similarity between a campus Title IX investigation and a criminal investigation of that sort of crime.

    By the way, as far as I can tell, colleges are not in any way bound to use the Preponderance standard when hearing an ADA or a Title VI case against an employee or a student. So, some do, and others do not. So the equity argument for using Preponderance in a Title IX disciplinary hearing now seems to me even weaker than it did before.

  21. Sharing a campus with your rapist is quite different from merely living in a state where your rapist continues to be a free citizen– but I’m not sure why you think colleges are not bound by a preponderance standard in other cases. Like I said above, though, I’ll try to get up a new post discussing this soon.

  22. Philodaria,
    I looked but could not find anything requiring a college or university to use Preponderance in a Title VI case. Obviously, this is not conclusive!
    If you know of something that does require this, please share it.

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