What’s Wrong with the AAUP’s Report on Title IX: Preponderance of the Evidence Standard Redux

I posted a couple of days ago about some of the problems with the AAUP’s recent report on Title IX. I think there are others, but for considerations of space, just mentioned two: one of which was the AAUP’s resistance to the preponderance of the evidence standard, the other was the AAUP’s confusion regarding the increase and manner of OCR investigations. At some point, I think it would be valuable to discuss some of those other issues (I’ll draw on a couple of points from this letter from the National Women’s Law Center below, but I encourage you to read it in full as it pertains to some of the other issues in the report as well), but first, more on the justification for the preponderance standard.

Brian Leiter wrote a reply to my post, taking issue with this passage:

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 cited Jackson v. Birmingham Board of Education in the explanation of my thinking, and in an update on his post, Leiter writes, “that retaliation for reporting sex discrimination is actionable sex discrimination for purposes of Title IX does nothing to establish that a higher standard of proof to prevail on a sex discrimination claim is sex discrimination.” Leiter is right that, in itself, that retaliation in the context of Title IX constitutes sex discrimination says nothing about standards of proof, but I didn’t say that it did. What I did say is that I think the courts’ reasoning in the course of determining whether or not retaliation constitutes discrimination – i.e., how the court defined what it is for something to constitute “discrimination on the basis of sex” – does.

Here’s that language again (emphasis mine):

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. . .

The import of the Jackson language quoted is not that the retaliation was a response to the person (Roderick Jackson) but to the claim (in Jackson’s case, a series of complaints about unequal treatment that he felt were prohibited by Title IX).  It can be analogized to campus responses to sexual assault cases in the following way: when a victim makes a complaint that s/he was sexually assaulted, under Title IX that is a claim of sex discrimination, because sexual assault is a severe form of sexual harassment, and sexual harassment has been confirmed by SCOTUS to be a form of sex discrimination.  Therefore, if the school responds to that claim using a process that requires a higher standard of proof than the standard of proof that the school uses for other claims, ones that do not implicate Title IX and do not allege sex discrimination, that is, in the words of the Court in Jackson, “differential treatment.”  So if a student made a complaint that s/he was the victim of harassment based on his/her race, the school would be required under Title VI to use a preponderance of the evidence standard.  If the school were still using “clear and convincing evidence” for sexual assault cases, this would mean that claims of sex discrimination (severe sexual harassment in the form of sexual assault) would be treated differently, and less favorably, by the school from claims of race discrimination (racial harassment).

Similarly, if one white, male, heterosexual student accused another white, male, heterosexual student of punching him in the face and the school used a preponderance of the evidence standard in its process for responding to that assault, but was still using “clear and convincing” in its process for sexual assault, that would be differential treatment based on the nature of the claim, where the claim alleging discrimination based on sex got “‘less favorable treatment” (see language from Newport News Shipbuilding & Dry Dock Co. v. EEOC, 462 U.S. 669, 682, n. 22, 103 S.Ct. 2622, 77 L.Ed.2d 89 (1983) included in Jackson) than the claim not alleging discrimination based on sex.

The National Women’s Law Center (lead counsel in Jackson v. Birmingham Board of Education) seems to agree that parity with other claims justifies the use of the preponderance standard in Title IX claims: Given that Title IX was modeled after Title VI, and preponderance of the evidence is the standard used in claims brought under Title VI, it is also the standard that applies to Title IX claims. The preponderance standard is also used in litigation of claims under Title VII of the Civil Rights Act of 1964, regarding sex discrimination in employment. Thus, it is the correct standard for allegations of sexual harassment, including violence.” (If you doubt that courts have taken up this standard, note the footnotes to this passage in their letter.)

Likewise, Nancy Cantalupo, in the piece I linked to a few days ago, writes,

Allowing schools to adopt a criminalized standard of proof such as “clear and convincing” evidence or “beyond a reasonable doubt,” . . . would also create legal and administrative barriers for student survivors of gender-based violence that do not apply to the vast majority of comparable populations involved in civil or civil rights proceedings, all of which use the preponderance standard. To name just a few, these groups include: other students alleging other kinds of sex discrimination; students alleging discrimination based on other protected categories, like race or disability; gender-based violence survivors seeking protection orders in civil court; students alleging other forms of student misconduct; and students accused of sexual or any other misconduct who sue their schools in civil court. In reality the preponderance standard is used in the vast majority of cases, not only in internal disciplinary proceedings but also in other administrative or civil court proceedings and under other civil rights statutes that protect equality . . . Indeed, separating out sexual violence victims for different procedural treatment would enact a new kind of damaging “exceptionality [for] rape,” as Michelle Anderson discusses in her paper for the September 25 Conversation. Using anything more stringent than a preponderance standard would symbolize that we as a society are comfortable with giving one group of women and girls, as well as men and boys who are gender-minorities and victimized because of it, unequal treatment when compared to everyone else.

In a footnote on this passage, Cantalupo notes:

Research shows that the majority of higher education institutions had voluntarily adopted a preponderance of the evidence standard for all student conduct proceedings by the early 2000s. See Michelle J. Anderson, Sexual The Legacy of the Prompt Complaint Requirement, Corroboration Requirement, and Cautionary Instructions on Campus Assault, 84 B.U. L. Rev. 945, 1000 (2004); Heather M. Karjane et al., Campus Sexual Assault: How America’s Institutions of Higher Education Respond 122 tbl.6.12 (2002), http://www.hhd.org/sites/hhd.org/files/mso44.pdf  [http://perma.cc/9Z57-PHR5]. Therefore, using a different standard from the preponderance standard in cases involving sexual or other forms of gender-based violence would mean that student victims of gender-based violence would be less protected than students who are victimized by another student in any other way.

Now, Geoffrey Stone has argued against the preponderance standard as follows (emphasis mine):

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.

To the extent that analogy between internal Title IX complaints at an educational institution and action in courts is apt (there is a substantive difference in that what happens in court is thereby public record), the analogy to civil action is far more apt than an analogy to criminal proceedings. In addition to the fact that in criminal cases it is the state, and not the alleged victim, who is party to the proceedings, as Stone writes, civil law adjudicated by a preponderance of the evidence standard provides relief for assault. Again, from the National Women’s Law Center:

The preponderance of the evidence standard is appropriate even in cases where there could be criminal sanctions for the defendant’s actions. For example, it is used in civil proceedings between two private parties, where—like a campus grievance proceeding for a complaint of sexual harassment—each party “has an extremely important, but nevertheless relatively equal, interest in the outcome.” This includes civil proceedings arising out of conduct that can also be criminal, but where there is no authority to impose criminal sanctions, such as a civil tort action for battery, robbery, or murder.

This goes, too, for civil cases regarding sexual violence. For instance, cases brought under California Civil Code Section 52.4, or Illinois’ Gender Violence Act.

Of course, Stone is right that expulsion may haunt a student. We should absolutely take that seriously, and I do. At the same time, let’s not forget how many students are expelled for infractions like plagiarism as compared to sexual assault; let’s not forget having been subject to sexual violence may haunt a victim; let’s not forget that being subject to sexual discrimination (including sexual harassment and assault) might, and in a number of cases has, destroyed victims’ chosen career prospects; let’s not forget that victims are often forced to transfer schools, or drop out; let’s not forget that victims have also been dragged through the nasty trenches of the internet, nor that some have been driven to suicide as a result. Moreover, let’s not forget that it is exactly these kinds of effects that educational institutions are legally obligated to address insofar as they impact one’s access to education; that is, “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.”

14 thoughts on “What’s Wrong with the AAUP’s Report on Title IX: Preponderance of the Evidence Standard Redux

  1. Leiter’s argument that the criminal rather that civil standard of evidence should be relied upon

    “on the grounds that the penalties are much more like criminal penalties than civil damages, especially (but not only) in terms of stigma.”

    seems obviously wrong. The thing about criminal penalties is they involve stuff like death or prison or supervised release, which deprive you of what might be called a bog-standard life: no frills, just being alive and the ability to move around more or less as you please and do what you want with your time.

    Civil damages take away things that are nice to have over and on top of a bog-standard life, like money. Or in this instance, your chosen career, your chosen degree from your chosen school, and the accompanying prestige etc. that go with it. These are bog-standard plus, and as has been pointed out, universities decide on the basis of internal rules and processes to withhold these privileges for other reasons that are also stigmatizing (plagiarism, and even various other sorts of bad behaviour: pranks, for example).

  2. I think that the argument to some degree misses the point. Of course in some ways disciplinary procedures are “like” criminal procedures, and in other ways they are not. Life is complicated.
    But consider the following sets of statements (T/F).
    (items phrased in terms of men perps and women victims which is the most common case)

    1. Hundreds / thousands of young men are expelled and their careers ruined every year due to accusations of sexual assault, some of which are presumably false.
    2. Young men are so afraid of being (unfairly) accused of rape and suffering dire consequences that their ability to properly participate in their education and campus life is severely impaired.
    3. Young men on campuses are commonly advised never to drink in company of women, and to adopt a buddy system – i.e. constantly keep in company of a sober (and preferably gay) man – to avoid the risk of being unfairly accused.
    4. If (ever) young men engage in sexual activities during their college years, young men bend over backwards to make sure their partners are consenting. If a man was e.g. drinking and is later accused of rape, people say “what did he expect”, “he was asking for it”.
    5. We regularly hear of young men attempting / committing suicide when they are accused of sexual assault, even before proceedings are concluded, because of the severe harassment they suffer on account of the accusation and the prospect of their life being ruined.

    1. Hundreds / thousands of young women are sexually assaulted / raped on campuses every year. Consequences to the perpetrators are nonexistent or so mild that rapists often boast of their “exploits”, or even post photographic evidence and videos online.
    2. Many young women are so traumatised by being sexually assaulted that their ability to pursue their education is severely impaired (forget about campus life).
    3. Young women students are commonly advised not to drink in company of their male peers and to adopt a buddy system to avoid being raped. (Not to mention told how to dress, how to walk, how to talk, where not to be etc)
    4. We hear phrases like “she was asking for it”, “she was leading him on”, “what did she expect” etc.
    5. We regularly hear of rape survivors attempting / commitng suicide due to the trauma of their experience and the severe harassment they are often exposed to afterwards.

    None of the above.

    If C, the current standard of evidence must be OK. If A, it is too low. If B, it is too high.
    This isn’t rocket science.

  3. I do see the point about using the same standard of evidence for Title IX complaints as for ADA or Title VI complaints.

    Cantalupo says (and you quote her as saying),

    Research shows that the majority of higher education institutions had voluntarily adopted a preponderance of the evidence standard for all student conduct proceedings by the early 2000s.

    But the works she cites do not say this. (There is only one real source although two citations, since one citation has the other as its source.) They say that the majority use that standard *for sexual assault cases*, not for *all* student conduct proceedings.

    I don’t see any source for the idea that a Title VI hearing of a claim against a student or employee of a university already must use the preponderance standard. Or an ADA-based hearing.

    So I think probably there is no requirement, and that in fact different colleges and universities use different standards. (And I think often they do not actually say in their public materials what standards they use.)

  4. I sent out a query on the National Institute of Justice data — I think what’s going on is that most schools use the same disciplinary proceedings for assault as they do for other infractions, but I’m trying to double check.

    Now, regarding your question about Title VI, I cited a few sources in the post above. But you can also just look at the Department of Justice’s investigation procedures manual: https://www.justice.gov/sites/default/files/crt/legacy/1998/11/30/complain.pdf

    And you can look at the footnotes on the issue of the preponderance standard for further sources.

  5. To Delft@4: that would seem to work equally well as an argument for lowering the burden of proof in criminal trials for rape and sexual assault.

  6. Right — not just that David, but also that those negative effects for victims could be present even if institutions were operating consistently with a preponderance standard; we wouldn’t think this means even the preponderance standard is too high, we would think there is something else going wrong.

  7. Ok Jamie, I’m still hoping to hear back on my query regarding the specifics of the NIJ study, but in the meanwhile, I’ve done some digging through the material.

    The Anderson article and the Karjane, Fisher & Cullen NIJ study cited by Cantalupo appear to have looked at misconduct policies generally, not just sexual violence policies. Although each study says that it looked at sexual assault policies, when you look more closely, it is evident that they looked at general policies either in addition to sexual assault-specific policies or because the sexual assault policy was embedded in the larger general misconduct policy. The NIJ study found the sexual assault policies by looking at the “Annual Security Report (ASR) and faculty and student codes of conduct/handbooks/university rules” (pg 19 at http://www.hhd.org/sites/hhd.org/files/mso44.pdf), and Anderson—who did do her own study and did not only cite to the NIJ study (see pg 41 at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=555884)–cites many schools’ general policies, handbooks, etc. (see, e.g., footnotes 308, 313-14, 317-18, 320, 322-325, 327-29, 331).

    To the extent that these studies are ambiguous about what policies they looked at and whether the standard of proof was the same for the sexual harassment/assault policies, other evidence that I found indicates that the standard of proof was for all misconduct. Cantalupo doesn’t mention it in the piece that I previously linked to, but in a book chapter that is not available online she discusses this document: http://www.edstoner.com/uploads/UE.pdf. Here is what she says:

    “Also well before the DCL [in 2011], higher education insurers and associations were encouraging schools to adopt “best practice” student conduct policies and procedures that implemented these fairness and equality principles. For instance, in a pamphlet published by United Educators and the National Association of College and University Attorneys (“NACUA”), attorney Edward N. Stoner (2006) promotes a “model student code” that explicitly rejects the criminal system as a model for student disciplinary systems. This pamphlet focuses preliminarily on three related points: 1) the goals behind student conduct policies and 2) the differences between those goals and the purposes of the criminal system, which make 3) thinking about student discipline systems in terms of the criminal law inappropriate and counterproductive.

    “The NACUA/United Educators report characterizes the central goal of student disciplinary systems as helping “to create the best environment in which students can live and learn… [a]t the cornerstone [of which] is the obligation of students to treat all other members of the academic community with dignity and respect—including other students, faculty members, neighbors, and employees” (Stoner, 2006, p. 7). He reminds school administrators and lawyers that this goal means that “student victims are just as important as the student who allegedly misbehaved” (emphasis in original), a principle that “is critical” to resolving “[c]ases of student-on-student violence” (Stoner, 2006, pp.7-8). In doing so, he points out that this principle of treating all students equally “creates a far different system than a criminal system in which the rights of a person facing jail time are superior to those of a crime victim” (Stoner, 2006, p. 7). Therefore, he advises that student disciplinary systems use the “‘more likely than not’ standard used in civil situations” and avoid describing student disciplinary matters with language drawn from the criminal system (Stoner, 2006, p. 10).”

    United Educators is a major education insurer and NACUA is the primary association for college/university counsels, so the fact that they published this pamphlet encouraging schools to adopt the model code is pretty good evidence, combined with the studies already discussed, that most schools were adopting the preponderance standard for all misconduct. But there is yet more evidence showing that 80% of the top 200 colleges/universities (based on US News rankings) already used the preponderance standard before the April 2011 DCL: http://www.thefire.org/pdfs/8d799cc3bcca596e58e0c2998e6b2ce4.pdf. Again, this appendix does not specify whether the preponderance is used in all misconduct or just sexual assault.

    But, actually, even if the numbers in these studies are absolutely talking about just sexual assault policies, I don’t see how that disproves Cantalupo’s larger points or mine, either about differentiation of standards or whether the preponderance is the right standard for sexual assault cases. First, on differentiation of standards, if I’m right about Jackson, the point is that sexual discrimination complaints could not be picked out for a higher standard on account of the nature of the complaints without thereby subjecting complainants to discrimination on the basis of sex as understood by the law. If 80% of schools had voluntarily adopted the preponderance for only sexual assault cases prior to the 2011 DCL letter, for that decision to be evidence that those schools thought sexual assault should use a higher standard, those schools would have to use a standard lower than preponderance for all other cases. What exactly would that standard be: “more not likely than likely”? Or “some evidence”? It seems unlikely that any school would see this type of differentiation as good policy, nor is there any evidence that schools actually went below the preponderance in any misconduct cases. Instead, if schools—again voluntarily, i.e. not because they felt pressured to do so by OCR—differentiated by having higher standards for other misconduct cases but a lower standard for sexual violence cases, that likewise does not support the argument that there are good policy reasons for having a higher standard for sexual violence.

    Second, regarding whether the preponderance standard is the right standard, it seems to me that the voluntariness of the adoption of the preponderance is a key fact, proven repeatedly by each one of these studies and the UE/NACUA publication. The studies show that a large majority of schools adopted and were being encouraged to adopt the preponderance standard well prior to the DCLfor sexual assault cases—and for good policy reasons that did not necessarily have anything to do with sexual assault specifically but certainly are in line with Title IX’s goals of equality, even-handedness and fairness. Whether they had the same standard for other misconduct claims doesn’t influence whether the preponderance is the right standard for sexual harassment/violence cases. It is only relevant as the National Women’s Law Center and Cantalupo discuss it: if sexual harassment/violence claims have to meet a higher standard where other claims have to meet a lower standard.

    Following up on my reference to the DoJ manual I linked to above, regarding your inability to find evidence that schools are required to use the preponderance in internal Title VI and ADA cases, you are right that there doesn’t seem to be an explicit statement regarding that specific issue in the OCR documents related to Title VI and the disability statutes as they pertain to individuals within an institution rather than as they pertain to complaints against institutions themselves. In case the relationship is not clear, though, institutions which receive Federal funding are obligated to investigate complaints of discrimination because failing to do so implicates the institution itself. If someone files a discrimination complaint against an institution for failing to appropriately handle a discrimination complaint internally, a preponderance of the evidence standard will be used to evaluate whether or not discrimination occurred.

    The evidence that the NWLC and OCR itself have given for the way in which Title IX and Title VI, in particular, use the same standards in other contexts makes it almost certain that OCR would require schools to use the preponderance in Title VI and disability cases. For what OCR has said on consistency of Title VI and Title IX, see pages 10-11 of http://www2.ed.gov/about/offices/list/ocr/letters/colleague-201104.pdf, and pages 3-4 of the letter from Asst Secretary Lhamon to Senator Lankford that I linked to in my first post which refers to consistency with Title VII (http://big.assets.huffingtonpost.com/lhamontolankford.pdf). Lhamon’s letter also discusses the role of OCR’s guidance like the 2011 DCL at page 2, and this makes it clear that the guidance documents do not articulate “requirements,” as you term it. The purpose of the guidance is to give schools an idea of how OCR will apply Title IX if a complaint is filed and OCR comes to the school to investigate. So it is not required by OCR guidance, but it is something that a wise school will pay attention to and try to put in place so that hopefully there is no complaint, and if there is a complaint, the standard of proof will not be an issue in the investigation.

    Finally, both the Anderson and NIJ studies did find that many schools never stated a standard of proof, so you may be correct that this information is often not publicly available. This was probably more the case at the time the Anderson and NIJ studies were done—certainly the August 2011 table at http://www.thefire.org/pdfs/8d799cc3bcca596e58e0c2998e6b2ce4.pdf seems to have more information about more schools’ standards. And if the 2011 DCL spurred more schools to make that information available, that seems like it would be a good thing for everyone: victims, accused and the larger community.

  8. Whoops — I meant to include a link to this too — here’s Stoner’s and Cerminara’s student disciplinary model published in the Journal of College and University Law in 1990, and a passage from within it: http://www.nacua.org/documents/harnessing_the_spirit_of_insubordination.pdf

    “This Model Student Code advocates using a ‘more likely than not’ or ‘preponderance of the evidence’ standard for disciplinary decision making. This is because the “beyond a reasonable doubt” standard applied in criminal cases is too demanding for college disciplinary proceedings. Courts review disciplinary decisions of colleges or universities under a ‘substantial evidence’ standard. In doing so, courts generally examine whether there was enough evidence at the hearing to demonstrate that it was ‘more likely than not’ that the accused student violated the Student Code, or whether a ‘preponderance of the evidence’ demonstrated such violation-the same standard applied in most civil cases. Some codes use a ‘clear and convincing’ standard, but such a standard is not common” (emphasis mine).

  9. Lest we forget, the standard of evidence is not the only relevant aspect of procedural fairness. University inquiries already disallow other crucial components of a fair trial, such as cross examination. A weakened standard of evidence, combined with these other, similarly weakened aspects of fair trials, will thus give even greater weight to the claim that these inquiries are often kangaroo courts.

    Stepping back from the specifics, I’d like to raise an argument I have not seen addressed on this blog (though please correct me if I’m wrong). What will be the most likely result if these types of inquiries, lacking much procedural protections for the accused, become standard? Will it lead to the “conviction” of more guilty parties? Probably. But it will also lead to many, many more lawsuits after the fact, and rightly so. Having gone through such a rigged “trial,” in which basic procedural norms of fairness are denied, who in their right mind wouldn’t sue? It won’t be difficult in the slightest to find a lawyer willing to take the case.

    Such lawsuits are already common and well-publicized, and they will continue to be so. This will be costly for universities. Moreover, I suspect that it will deny victims the sense of “closure” that might otherwise be obtained by removing perpetrators from campus, as a suit in a real court will only prolong having one’s name in the press.

    Finally, in the inevitable cases in which someone is falsely accused, or accused on utterly ridiculous grounds, expulsion after such a “trial” will gain public notoriety (again, rightly so). One effect of this is that the “men’s rights” crazies who promote narratives about false claims of sexual harassment and assault will come to seem more reasonable, given that they can point to actual cases in which a male student has been unfairly and harshly punished. This will lead to further disbelief of actual victims and skepticism toward movements to mitigate sexual assaults on campus.

    All of this is to say that if you don’t find arguments from procedural fairness persuasive, you should still consider that weakening procedural protections will be genuinely harmful to not only the wrongfully accused, but also to future victims.

  10. SF, I think you raise some genuine issues, but also that your comment is confused in a couple of respects. So, first, university disciplinary hearings just aren’t trials — you might be kicked out of school for theft, for instance, without thereby being burdened with a criminal record. But we don’t typically think that a lack of a student’s ability to engage in cross-examination in a student hearing for theft, or plagiarism, or other conduct code violations means that the student was subject to a kangaroo court.

    To be clear — I agree with you (and Fool, I think, on the previous thread) that there are serious problems with institutional enforcement of Title IX, and I think external audits, additional training, etc., are all sorely needed. But I think the way in which Title IX enforcement needs works is so that it is more fair to all parties, not just more difficult for those who allege to be victims to make their case.

    Second, I am strongly opposed to thinking about Title IX primarily in terms of convicting offenders — that’s not what this law is for. It’s about protecting equality in educational contexts. So, my concern is not about increasing the number of guilty parties found responsible for bad behavior, but rather maintaining an equal opportunity environment.

    Third, these things are already standardly occurring on campuses — and you’re right that there are more lawsuits coming out of this. There is also an increase in lawsuits brought by victims against institutions for failing to respect their rights in the process. And in the obvious ways, this is bad — it’s bad for those who have been hurt, it’s bad for those who are having to go through the further pain and stress that lawsuits involve — but in other respects, I think this is good insofar as it puts pressure on universities to be careful in how they handle these matters (this is actually another reason I think we ought to support OCR involvement on our campuses; it has some of the benefits of lawsuits by way of oversight and pressure to do right, while allowing those involved to maintain their privacy as the details of OCR complaints are not necessarily public record in the way court cases are).

    Fourth, as I indicated above in mentioning lawsuits brought by victims, there are a multitude of cases where victims have been harmed too by universities’ failures to adjudicate cases properly — this is easy enough to find in the news, but I linked to a couple of cases in my previous post on this. Again, let’s just not forget the other side of this.

    Fifth, folks victim-blame all the time. But I take it don’t think women should stop wearing short-skirts, drinking alcohol, or generally existing in public on the grounds that should they be assaulted under those circumstances they will only be feeding into the myths that women who are assaulted are asking for it. So, I don’t find your final point persuasive.

    And finally, as I’ve been arguing, I don’t believe the preponderance standard is a weakening of the procedural standards. Rather, I believe it is the standard that was already required by law.

  11. University disciplinary hearings are sufficiently trial-like that it doesn’t matter whether we call them trials or not. Suppose that a student was expelled for theft without being able to defend him/herself before the “judge.” You deny that this constitutes a “kangaroo court.” Yet I take it you would agree that this would nevertheless be a serious denial of procedural fairness?

    If so, then the question is: what norms of procedural fairness ought to be adopted for university disciplinary hearings, particularly when such hearings will result in a student being expelled and branded as a rapist? (You may be opposed to thinking of expulsion as a “conviction,” but unfortunately your line of thought is not widely shared). Given the gravity of such a finding, very robust norms are warranted.

    Moreover, your continual reference to the harm suffered by victims is irrelevant. No reasonable person discounts these harms. It is simply that, just like in any other case where someone has been grievously harmed, it is no affront to the victim to insist on procedural fairness.

    You claim that the recent post-inquiry lawsuits are in part good because they “[put] pressure on universities to be careful in how they handle these matters.” As well they should. In fact, due to one such lawsuit, Texas A&M is now under federal investigation for submitting a student to an inquiry that lacked any real procedural protections. Taking more care in an investigation requires scrutinizing claims closely, adducing and examining evidence, cross-examining witnesses, etc. In other words, a substantial degree of procedural fairness.

    What is puzzling to me about all of this is that it is manifestly obvious that no amount of additional training or audits will bring about the result that university disciplinary hearings are good venues for making these judgments. Weakened procedural norms does nothing to change this latter fact. As I argued above, it will harm future victims and will make the public ever more skeptical about attempts to combat “rape culture.” (See also: the Rolling Stone catastrophe.). This is clearly not the same as “victim blaming.”

  12. “Suppose that a student was expelled for theft without being able to defend him/herself before the “judge.” You deny that this constitutes a “kangaroo court.”

    No, I didn’t say this. What I did say is that an inability to engage in cross-examination would not thereby constitute a ‘kangaroo court.’

    “[W]hat norms of procedural fairness ought to be adopted for university disciplinary hearings . . . ?”

    I think the guidance that the OCR has already issued on this (that is, guidance that complainant and recipient ought to have equal access and notice throughout, including equal opportunity to present evidence, witnesses, be apprised of the proceedings, etc.) is a start, but that we need to be sure that parties actually have opportunity to do these things; there are a few schools that have outsourced their investigations to external lawyers, which I think is a better model than, say, having a untrained faculty investigator (not all schools have the resources to do this, but there are far more institutions that do have the resources than there are institutions that actually do this), and so on. There’s actual a whole literature on student disciplinary matters — it’s a topic that’s certainly already under discussion.

    “Moreover, your continual reference to the harm suffered by victims is irrelevant.”

    No, it’s not. Again, see previous discussion regarding harm to the victim being relevant to the manner in which civil proceedings are adjudicated, as well as the equality considerations under Title IX.

    “What is puzzling to me about all of this is that it is manifestly obvious that no amount of additional training or audits will bring about the result that university disciplinary hearings are good venues for making these judgments.”

    Well, they are required to by law. So, we better find a way to make them good venues for making these judgments.

    “Weakened procedural norms does nothing to change this latter fact.”

    Again, I don’t grant that a preponderance standard is a weakening.

    “This is clearly not the same as ‘victim blaming.'”

    Well, my point is that I am arguing that the preponderance standard respects victims’ rights. If the argument is that I’m supposed to give up on this standard in order to protect future victims from the skepticism of the public, then I think it ends up sort of in the same neighborhood in terms of reasoning. The idea is this: Suppose women have a right to wear whatever they want. Suppose exercising that right, if something goes wrong because of another bad actor, will lead to bad consequences for victims in terms of public reaction. That’s not a reason to think there was something wrong with women wearing what they want. They have a right to. Someone else acted badly. Likewise, I’m saying if complainants have a right to have their claims adjudicated by a preponderance standard, that some may act badly, and that this could lead to bad consequences, doesn’t speak to a need to not let them exercise their rights.

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