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.”

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:

Read More »

Diversifying a Discipline

I haven’t been able to read this yet because it’s behind a paywall, but I’m going to find a way around that because it’s important.

In 2015, Penn State produced an unprecedented number of black, female Ph.D.s in philosophy. Here’s how.

 

Effect of gender role threat on vote preference

This is a really important finding, and indicates something that we will very much need to find a way to fight, should Clinton be the Democratic candidate.

 

 Volumes of research in sociology have shown how men respond to perceived threats to their masculinity: in the face of personal or societal threats to their masculine identity, some men become more likely to endorse anti-gay stances, pro-gun policies, or anti-abortion views…

In the study, a randomized experiment was embedded in an otherwise normal political survey of likely voters in New Jersey. Half of the respondents were asked about the distribution of income in their own households – whether they or their spouse earned more money – before being asked about their preference in the Presidential general election. The other half were only asked about the distribution of income in their household at the end of the survey. This question was designed to remind people of disruption to traditional gender roles, without explicitly mentioning Clinton or a female president, and simulate the sorts of subtle gender-based attacks that can be expected when Clinton is a general election candidate.

The effects of the gender role threat question are enormous. As Figure 1 shows, men who weren’t asked about spousal income until after being asked about the Presidential election preferred Clinton over Trump, 49 to 33. However, those who were reminded about the threat to gender roles embodied by Clinton preferred Trump over Clinton, 50 to 42. Concerns about gender role threat shifted men from preferring Clinton by 16 to preferring Trump by 8, a 24 point shift…

The case that this is really about Clinton’s gender, rather than her party is made clearer by the fact that the same experiment has almost no effect on support for Sanders in the match-up with Trump.

This seems pretty compelling, and very worrying.

 

Happy anniversary of contraception being legal for the unmarried in the US!

 

March 22 marks the 41st anniversary of Eisenstadt v. Baird, the Supreme Court decision that established the right of single individuals to possess contraception. That’s right: As recently as 1972, you could go to jail for giving contraception to an unmarried person. And William Baird did. Eight times. In five different states.

That piece is actually three years old, but since today was the anniversary, I wanted to share — particularly since the issue of contraceptives is hitting the Supreme Court yet again this week.

Demographics of Philosophy Doctorates in the US

Eric Schwitzgebel has a very useful post up.  Here are some of the main findings:

Gender—

In the 1970s, 17% of the SED philosophy respondents were women. In the 1980s it was 22%. In the 1990s it was 27%. In the 2000s it was also 27%. So far in the 2010s it has been 28%.

 

Race–

Also notable is the increase from 1-2% Hispanic or Latino in the 1970s-1980s to 6.3% in the 2010s. This is still, however, well below the approximately 17% of the U.S. population that is Hispanic. It is also matched by a sharp decline in “Ethnicity not reported”, raising the possibility that it is in part a reporting effect.

The percentage of non-Hispanic Black or African American U.S. PhD recipients does not appear to have increased much if at all since the 1970s, hovering around 1.4% to 2.2%, compared to 13% of the U.S. population.

Men on Death and the afterlife

For an explanation of our Gendered Conference Campaign, see here.

http://www.crassh.cam.ac.uk/events/26171

Death and the Afterlife
22 January 2016

This symposium is an interdisciplinary exchange focused on the recent book Death and the Afterlife, by Professor Samuel Scheffler (New York University). It will bring together perspectives from social anthropology, philosophy, and political theory…It is open to scholars from all fields, and papers will be presented with a broad audience in mind.

Confirmed speakers:

Professor Samuel Scheffler (Department of Philosophy, New York University)
Professor Hallvard Lillehammer (Department of Philosophy, Birkbeck College, University of London)
Professor Joel Robins (Department of Social Anthropology, University of Cambridge)
Dr James Laidlaw (Department of Social Anthropology, University of Cambridge
Dr Jonathan Mair (School of Arts, Languages, and Cultures, University of Manchester)
Dr Paul Sagar (Deparment of Politics and International Studies, University of Cambridge)

Are boys sexist?

[ I’m more short on time than I had realized; readers are invited to give a more nuanced account.  Tim King in particular seems to open the way for more layered views]

The New York Times has a discussion on whether boys are today raised with sexist attitudes.. It is unfortunately largely conducted in terms as general as the title of this quote.

Leonard Sax and Christine Hoff Summers show up as gender essentialists, to put it perhaps unkindly, and in general the discussion of all five participants seems bereft of positive examples of parents or schools getting it right.

Two other essayists tend to converge on the following

Girls knocking against traditional male doors are aspirational, while boys gravitating toward anything traditionally feminine are devalued. And suspect. True gender equality can’t exist until both boys and girls can embrace the full range of their humanity.

It isn’t clear that we have solved the problem of raising at least most girls to insist on equal treatment. Nor is it clear that it is in their interests always to do so. No one seems to consider that various senses of privilege are adding to the problems.

CHE: Why getting rid of predatory faculty can be so hard: addition

Tenure and the reactions of faculty peers can be a significant part of the problem, according to the CHE (in an artcle unfortunately behind a firewall):

Even a professor who is the subject of regular misconduct complaints often cannot be easily removed from a campus. Tenure protects many professors from quick dismissal. Their faculty peers, who are often charged with assessing whether an accused colleague bears responsibility, may view the cases as attacks on tenure. College leaders, who often don’t have the power to terminate a professor without consulting the faculty, may fear damage to their institution’s reputation. Students who experience harassment may not file complaints if they feel they have little chance of being taken seriously.

 

Nor, as the last sentence suggests, is the victim usually keen to file charges. As Mr Isicoff, the lawyer defending the University in the McGinn case, is quoted as saying, “you’re walking in with the odds largely stacked against you,” as a student.

Part of the solution may consist in steps taken before hiring, as the philosopher Heidi Lockwood said.

…Ms. Lockwood sees it. She said colleges can take clear steps to improve how they handle claims of misbehavior by professors. She recommended, among other changes, that colleges conduct harassment-specific background checks before hiring professors.
 

Added: I’ve just noticed that the article is utterly silent about the role – or lack of roles – for bystanders. I’m unhappy that I didn’t notice this right away and think we might put some effort into reminding ourselves we should be thinking of taking action. In the Macy case, for example, the situation was well known to a lot of people before formal complaints were made.

“contemptible and inexcusable”

Geoffrey Marcy is resignng from UC, Berkeley.  (For background, see here.). According to the NY Times:

In a statement announcing Dr. Marcy’s resignation, the university’s chancellor, Nicholas B. Dirks, and the executive vice chancellor and provost, Claude Steele, said they had accepted Dr. Marcy’s resignation and added: “We want to state unequivocally that Professor Marcy’s conduct, as determined by the investigation, was contemptible and inexcusable. We also want to express our sympathy to the women who were victimized, and we deeply regret the pain they have suffered.”