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Harvard Law professors to Department of Education: campus sexual assault policy needs revisiting

By August 25, 2017

Earlier this week, four Harvard Law School professors (and self-described feminists) submitted a memorandum to the Department of Education’s Office for Civil Rights (OCR) arguing that sexual misconduct on college campuses requires solutions designed to provide fundamental fairness to victims and accused students alike.  

The memorandum ― titled “Fairness for All Students Under Title IX,” and authored by professors Elizabeth Bartholet, Nancy Gertner, Janet Halley, and Jeannie Suk Gersen ― argues that while born of good intentions, the approach to campus sexual assault promulgated by OCR’s 2011 “Dear Colleague” letter is flawed:

While the Administration’s goals were to provide better protections for women, and address the neglect that prevailed before this shift, the new policies and procedures have created problems of their own, many of them attributable to directives coming from the Department of Education’s Office for Civil Rights (OCR). Most of these problems involve unfairness to the accused; some involve unfairness to both accuser and accused; and some are unfair to victims. OCR has an obligation to address the unfairness that has resulted from its previous actions and the related college and university responses.

What is so important about this statement is that it recognizes that regardless of the intentions behind the Dear Colleague letter, the government’s current approach to addressing sexual misconduct on campus has resulted in injustices in all directions. This acknowledgment sets the stage for the main thesis of the memo: that we need to revisit the guidance and implement regulations that take the rights of all students into account.

One popular narrative that some advocates advance is that rescinding the Dear Colleague letter and setting forth new regulations subject to public notice and comment is really a thinly-veiled ruse to weaken Title IX enforcement and return to an era when concealing accusations was common practice. The professors’ memorandum powerfully refutes that misconception by shedding light on the ways the current practices are resulting in injustices and proposing meaningful changes that would be to everyone’s benefit.

Turning to their critique of the status quo, the professors first explain that OCR has promoted sweepingly broad definitions of sexual misconduct. They write:

Definitions of sexual wrongdoing on college campuses are now seriously overbroad. They go way beyond accepted legal definitions of rape, sexual assault, and sexual harassment. They often include sexual conduct that is merely unwelcome, even if it does not create a hostile environment, even if the person accused had no way of knowing it was unwanted, and even if the accuser’s sense that it was unwelcome arose after the encounter. The definitions often include mere speech about sexual matters.

Overbroad definitions of harassment account for a huge swath of the unconstitutional speech codes that have been used to censor and punish college students for years. Despite several courts holding that these overbroad policies are unconstitutional, OCR nevertheless infamously suggested that institutions must adopt unconstitutionally broad definitions of harassment in findings letters accompanying resolution agreements with the University of Montana and, later, the University of New Mexico.

Writing specifically about due process, the professors argue (as FIRE has repeatedly) that the use of the “preponderance of the evidence” standard in campus tribunals is only appropriate if those campus proceedings include robust protections similar to those used in courts:

These substantive and procedural fairness issues are exacerbated by OCR’s requirement that institutions use a preponderance of the evidence standard rather than a higher standard such as clear and convincing evidence. To be sure, our legal system uses the preponderance standard – which means “more likely than not” – in many important fora, such as civil trials. But civil trials have many features that have been developed over centuries to produce an overall system fair to both parties, including an independent and neutral initial decisionmaker and appeal body, legal counsel, a hearing with rules of evidence, and a right of appeal that relates to all aspects of the decision. Dropping the preponderance standard into the severely skewed playing field of the new OCR inspired procedures risks holding innocent students responsible.

The piece also argues against a recent trend of institutions eliminating hearings altogether by replacing them with a disciplinary process conducted in its entirety by a single investigator. Explaining why this model is so problematic, the professors write:

Compounding matters, many institutions follow the “investigator only” or “single investigator” model, wherein the investigator is also the adjudicator. In this model, there is no hearing. One person conducts interviews with each party and witness, and then makes the determination whether the accused is responsible. No one knows what the investigator hears or sees in the interviews except the people in the room at the time. This makes the investigator all powerful. Neither accuser nor accused can guess what additional evidence to offer, or what different interpretations of the evidence to propose, because they are completely in the dark about what the investigator is learning and are helpless to fend off the investigator’s structural and personal biases as they get cooked into the evidence-gathering.

FIRE agrees fully with the professors’ concerns about the single investigator model, and we are glad to see our shared reservations about it articulated so persuasively.

The professors recommend the following:

In the next phase of reform, it is crucial that OCR make clear that schools must treat all students fairly. To that end, some basic principles of fairness should be observed. Schools must:

Return to the Supreme Court’s definition of sexual harassment: unwelcome sexual conduct that is sufficiently severe or pervasive to interfere with the victim’s educational opportunity. Repeatedly the Court has said that a reasonable person test must be applied in determining whether conduct was wrongful, to provide a necessary check on arbitrary accusations. To impose liability, the decisionmaker must find that a reasonable person in the accuser’s position would experience the incident to be abusive, and also that a reasonable person in the defendant’s position would have known that the conduct was unwelcome. These traditional reasonable person limits are central to preserving academic freedom and individual autonomy.

Provide parties with the complaint and inform them of the factual basis of the complaint, the evidence gathered, and the identities of witnesses.

Provide a hearing and allow the parties the opportunity to hear the testimony in real time and to offer amendments and corrections.

Allow parties to bring counsel to any interviews and hearings, and allow counsel to speak to assert the parties’ rights.

Allow parties to ask questions of other parties and witnesses in a meaningful way, even if through intermediaries rather than face-to-face or in direct confrontation.

Use a preponderance of the evidence standard only if all other requirements for equal fairness are met.

Provide parties copies of reports produced by investigators and adjudicators.

Separate the Title IX compliance officer role from the roles of advising individual students considering filing complaints, investigation, adjudication, and appeal of individual cases.

Separate the functions of investigator, adjudicator, and appeal into different individuals or panels independent of each other, and not invested in the outcome of previous stages of the case.

Allow appeals on any grounds, rather than limit them narrowly.

Hopefully, the Department of Education is listening.