UPDATE: Betsy DeVos has just reversed the “Dear Colleague” policy. As the New York Times notes in a brief report:
Reversing a key part of government policy on campus sexual assault, Education Secretary Betsy DeVos on Friday issued new temporary rules that could give accused students greater protection against campus rape and sexual misconduct claims.
Ms. DeVos said that colleges may now use a higher standard of evidence before finding students responsible for sexual assault, a decision that can lead to discipline and even expulsion.
The change, the latest in a widespread rollback of Obama-era rules by the Trump administration, had been long sought by advocates of accused students, mostly men, who had complained that campus judicial processes had become heavily biased in favor of women accusers.
The rules, a sharp break from the Obama administration’s directives, will now permit colleges and universities to raise their evidence requirements to a “clear and convincing standard” of proof. The Obama administration had demanded colleges use a lower “preponderance of evidence” standard.
The interim rules permit colleges to maintain the preponderance standard if they so choose, but the change suggests Ms. DeVos wants colleges to consider adopting the higher standard, if not actually forcing them to do so. The rules will remain in effect while the Education Department seeks public comment on a permanent set of rules.
I suspect that most colleges will keep the “preponderance of evidence” standard out of simple inertia—unless lawsuits by those found guilty start to accumulate.
In 2011, the Office for Civil Rights (“OCR”) of the U.S. Department of Education sent its famous “Dear Colleague” letter to American colleges and universities, suggesting how sexual harassment and assault cases should be handled. Before that, it was pretty much up to the colleges how to handle such in-house investigations, and different colleges used different standards of evidence. There are three that could be used (see here for more explanation):
- Conviction requires guilt “beyond a reasonable doubt”, which of course means that the bar is very high for conviction.
- Conviction requires “clear and convincing evidence”, that is, it must be “highly probable or reasonably certain” that harassment or assault occurred. This is conventionally interpreted to mean a likelihood of 75% or higher that the assault took place.
- Conviction requires a “preponderance of the evidence” for assault or hasassment. This means that it is more likely that not (likelihood > 50 %) that the offense occurred.
Criminal courts in the U.S. use the first standard for conviction. The “clear and convincing” standard is used in some administrative court determinations and certain civil or criminal cases (a prisoner seeking habeas corpus relief from capital punishment, for instance, must prove his innocence using this standard). The “preponderance” standard is used in civil and family courts; it is, for instance, the reason why O. J. Simpson was found guilty of by a civil court for damages in the murder of Nicole Brown Simpson and Ron Goldman, thus owing them lots of money even though he was exonerated in his criminal trial.
The “Dear Colleague” letter, although said by the Obama administration to be only “advisory”, made a strong suggestion that adjudicating sexual assault cases in colleges should use the lowest standard of proof. Here’s an excerpt (my emphasis):
As noted above, the Title IX regulation requires schools to provide equitable grievance procedures. As part of these procedures, schools generally conduct investigations and hearings to determine whether sexual harassment or violence occurred. In addressing complaints filed with OCR under Title IX, OCR reviews a school’s procedures to determine whether the school is using a preponderance of the evidence standard to evaluate complaints. The Supreme Court has applied a preponderance of the evidence standard in civil litigation involving discrimination under Title VII of the Civil Rights Act of 1964 (Title VII), 42 U.S.C. §§ 2000e et seq.
. . . Thus, in order for a school’s grievance procedures to be consistent with Title IX standards, the school must use a preponderance of the evidence standard (i.e., it is more likely than not that sexual harassment or violence occurred). The “clear and convincing” standard (i.e., it is highly probable or reasonably certain that the sexual harassment or violence occurred), currently used by some schools, is a higher standard of proof. Grievance procedures that use this higher standard are inconsistent with the standard of proof established for violations of the civil rights laws, and are thus not equitable under Title IX. Therefore, preponderance of the evidence is the appropriate standard for investigating allegations of sexual harassment or violence
The rationale, as you see, put the Title IX standards in line with that of civil rights violations rather than criminal actions. Although this was touted as a “guideline”, it was made clear that colleges might suffer withdrawal of federal funds if they didn’t adhere to the 2011 standards, and also be subject to on-site inspection by the OCR. Virtually every college now adheres to the standards laid out in the “Dear Colleague” letter.
If you’ve followed the news even cursorily, you know that there were other provisions of the letter (like allowing a form of double jeopardy for the accused) that led to a mess and a bunch of lawsuits by those who were convicted—almost all men. Students could be tried even if the “victim” didn’t complain or even denied that any assault took place: a simple third-party complaint would do. And professors got in trouble merely for discussing other people’s cases, making them subject to their own Title IX complaints (see the recent article in the New Yorker, “Laura Kipnis’s Endless Trial by Title IX“). For other reports of how Title IX has led to widespread confusion, see the articles here and here, as well as Emily Yoffe’s three-part series in The Atlantic (links here).
In response, four women professors at Harvard’s Law School have called for the use of the “preponderance of evidence” standards previously used by Harvard. Further protests were summarized in a letter by 21 law professors:
Criticisms of OCR Criticism of OCR’s enforcement of its directives has come from a broad range of stakeholders, including law professors, civil libertarians, and others. This is a sampling:
- Twenty-eight Harvard Law professors protested that OCR’s directives“lack the most basic elements of fairness and due process, are overwhelmingly stacked against the accused, and are in no way required by Title IX law or regulation.”
- University of Pennsylvania law professors expressed “outrage” at the fact that campus sexual assault has become “a justification for shortcuts in our adjudicatory processes,” criticizing the practice as “unwise” and contradicting “our principles.”
- Members of the U.S. Commission on Civil Rights noted OCR’s “disturbing pattern of disregard for the rule of law” in addressing campus sexual violence and observed that “nowhere in the text of Title IX, which has been used to justify the school’s need to adjudicate outside the justice system, or in earlier Office for Civil Rights regulations does it state such a low burden be used.”’
- Elizabeth Bartholet, a Harvard professor of civil rights, has described OCR’s policies restricting the due process provided to accused students as “madness.”
- Cornell University professor Cynthia Bowman reported “general agreement among faculty at the Law School that the procedures being proposed are Orwellian.”
Professional organizations have expressed concerns, as well:
- The American Association of University Professors warned OCR that use of the lower standard of proof would “erode the due process protections for academic freedom.”
- The National Association of Scholars has urged Congress to “[r]ein in education administration on ‘unlawful’ bullying, sexual assault policies.”
The mess that we’re in started as an admirable attempt to make sure that women were treated equally on campuses (the original purpose of Title IX) and then later to ensure that as few sexual assaults as possible would occur on campuses. We’re all in favor of these things. But the mess came from two sources: the reduction of the standard of evidence for guilt to the lowest possible bar, and to adjudicating criminal acts by colleges acting on their own rather than using the legal system. Further, universities aren’t really set up for this kind of trial system, and widely varying standards of evidence and procedure resulted. Some of the stories are frightening.
Education Secretary Betsy DeVos recently announced that the Trump administration is going to look at the Obama standards and perhaps change them, tightening the standards of evidence. This has been met with outrage by liberals and feminists as the Trump administration’s attempt to “normalize” rape culture. (Surprisingly, an article in the New Yorker by Jeannie Suk Gersen, a Harvard Law Professor and the author of the aforementioned piece on Kipnis, approves of DeVos’s move.)
Now I’m as suspicious of DeVos as anyone else is, but we can’t simply reject every new policy simply because it comes from a Trump appointee. As Gersen said of DeVos’s speech on the subject, what the Secretary said would be uncontroversial if it came from an Obama appointee:
In short, DeVos appears to be proceeding exactly as an agency head should: give notice, take comments, and explain why a given policy is being adopted. But the intent to depart from an Obama-era policy, which itself did not go through those steps, will undoubtedly garner outrage and dismay. “We must continue to condemn the scourge of sexual misconduct on our campuses,” she said. “We can do a better job of making sure the handling of complaints is fair and accurate,” she also said. If these statements were made by a different official in a different Administration, they would seem rational, uncontroversial, and even banal. The idea that an adjudicatory process should be fair to both sides is about as basic as any facet of American law can be, even when it is articulated by an individual who is noncommittal on the basic educational rights of L.G.B.T.Q. students and students with disabilities, and who believes that guns belong in schools to protect against grizzly bears. But in these times, especially following the equivocal statements made by President Trump on the violence in Charlottesville, the very concept of “both sides” may approach moral peril (to say nothing of the fact that Trump himself has boasted of sexual assault).
It’s clear that Title IX needs fixing. I’m not sure how to do it, but I think the “preponderance of evidence” standard needs to go. Sexual assault is a serious matter—a heinous criminal act—and should be judged according to higher standards of evidence.
One solution is that all cases reported to colleges be reported to the courts first, who will determine what to do and, if there’s determined to be sufficient evidence for a trial, find the accused innocent or guilty. If guilt is determined, then the college can make its own judgment about how to treat the guilty student. Others object to that because not all victims want to report assaults to the police. But then it doesn’t seem fair that someone can be convicted by a much lower standard of evidence (granted, they’d just get suspended rather than incarcerated)—especially a “>50%” one that comes close to a judgment call. I haven’t yet formulated a strong opinion on this, but am asking readers to weigh in on one of four choices.
First, you can choose whether or not all sexual assault cases reported to colleges should be immediately given to the police for handling, and only after the courts have resolved the issue should the college step in. (I’d think that a finding of “not guilty” would end the matter, but maybe not.) Or, if you think that colleges should judge these cases independently of the courts, using their own standards of evidence and procedure, which of the three standards above should the college use?
These are mutually exclusive choices, so please vote for one and please justify your answer in the comments if you have time. You can view the results after you vote.