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University Lawyers Frustrated by OCR Mandate

Articles this week in both The Chronicle of Higher Education and The Harvard Crimson indicate that policymakers and lawyers on university campuses continue to struggle with the Department of Education's Office for Civil Rights' (OCR's) mandates regarding campus procedures for sexual harassment and sexual assault. As the articles showcase, not only has OCR's directive forced schools to sharply reduce students' due process rights, it has left many on campus frustrated with OCR's top-down approach and lack of stakeholder input.

The Chronicle piece (subscription required) discusses the general response of campus counsel as they work to bring their schools in line with OCR's new requirements, the most significant of which is the imposition of the low "preponderance of the evidence" (or "more likely than not") evidentiary standard for adjudications of sexual misconduct. As the article relates, even though more than a year has passed since OCR's April 4, 2011, "Dear Colleague" letter, colleges are continuing to experience difficulties in adopting this and other major changes to their campus policies and proceedings. At many schools, this revision process has proven to be complex and difficult:

Janet P. Judge, an expert in the legal aspects of college athletics, said many in higher education have long associated Title IX only with its rules requiring an equal number of athletic opportunities for women and men. As a result, the Dear Colleague letter "sent schools scrambling" to comply with both with the newly issued guidelines as well as decades-old standards.

A major complicating factor in enforcing the law's requirements is that colleges may be trying to enforce campus policies at the same time that a criminal investigation is proceeding, Ms. Judge writes in a paper recommending how institutions can better meet the Title IX mandates. 

Moreover, the revision process is not a favorite among campus counsel:

The requirements outlined in the Dear Colleague letter also remain widely unpopular with college lawyers, who often protest that the 2011 guidance saddles their institutions with a broad and prescriptive set of procedures. Lawyers on campuses "feel like they're being directed to adopt a certain format, and nobody asked them about that," says Pamela Thomason, the lawyer who oversees Title IX compliance at the University of California at Los Angeles who also spoke on the Title IX panel.

As we've stated time and time again, OCR's new requirements intrude upon universities' institutional autonomy by telling them how to run their adjudicatory processes in a "one size fits all" model, without regard for the critical differences between institutions or for the familiarity that administrators have with their respective schools. 

We've also commented before that by failing to provide a notice-and-comment period prior to promulgating its requirements, OCR shut out stakeholders like university counsel, administrators, faculty, and students-and may have violated the federal Administrative Procedure Act (APA). Can OCR or anyone else, then, really be surprised when campus counsel and administrators respond to the required changes with frustration? Even though they are the ones forced to take action, they were given no input into the decisionmaking process behind the "Dear Colleague" letter-a problem that the notice-and-comment rules ignored by OCR were intended to address. Just ask longtime higher education counsel like Robert B. Smith of national law firm LeClairRyan, who leads his firm's Colleges and University Team. Smith criticized OCR's lack of transparency back in August of last year, noting that the new mandates were "formulated, moreover, without hearings, comment periods or other mechanisms aimed at avoiding unintended consequences that could cause more harm than good" and concluding that "OCR's directive seems rooted in ignorance of the nature of these cases." 

The Chronicle highlights another major flaw with the OCR directive: its failure, in requiring schools to address sexual harassment, to protect student freedom of speech and incorporate a proper understanding of peer harassment law. This, too, we've noted many times before. Witness this statement in the Chronicle piece: 

Even with better training, however, the proliferation of technology continues to create challenges for campuses trying to enforce rules against sexual harassment, Ms. Judge said. For example, sexist statements on posted on social-media sites by students may rise to the level of violating the law and campus policies, she said. 

The problem here is that most "sexist statements" are protected under the First Amendment. Such expression by itself does not rise to the level of peer harassment as defined by the Supreme Court, and will only be part of an actionable claim when it is swept up in a pattern of extreme, usually repeated conduct. In other words, sexist statements only lose First Amendment protection and become actionable as peer harassment when they are part of conduct that is "so severe, pervasive, and objectively offensive, and that so undermines and detracts from the victims' educational experience, that the victim-students are effectively denied equal access to an institution's resources and opportunities." Davis v. Monroe County Board of Education, 526 U.S. 629, 652 (1999). 

Of course, had OCR's letter spent any time at all on this issue—instructing schools that they must protect students' free speech rights when addressing sexual harassment—these types of misunderstandings could have been avoided. 

The other article of note comes from The Harvard Crimson, which reports that Harvard University does not plan to alter its sexual assault policies in light of Yale University's recent settlement with OCR over a complaint alleging that Yale's policies and grievance procedures did not adequately address sexual misconduct under Title IX. (Most significantly, Yale agreed to change its standard of proof in such cases from "clear preponderance of the evidence" to the lower "preponderance of the evidence" standard, consistent with the April 4, 2011, "Dear Colleague" letter.) Despite Yale's settlement and the attendant policy changes, Harvard does not appear to have immediate plans to follow suit:

"We don't have any plans to make changes but we are still looking at our policy and our practices," Secretary of the Administrative Board John "Jay" L. Ellison wrote in an email. "Yale's situation was different than ours but we can learn from them."

Currently, Harvard employs different standards of evidence among its various schools. The Law School uses the more stringent "burden of proof" standard--which requires about 80 percent proof for a guilty verdict--while the Faculty of Arts and Sciences requires that the Administrative Board be "sufficiently persuaded" of an accused student's responsibility for an alleged incident.

The Crimson also notes that peer institutions like Cornell University and the University of Pennsylvania reformed their sexual assault policies in the spring. (Indeed, Cornell's change set up a two-tiered system of campus jurisprudence, as we've discussed here on The Torch.) It will be interesting to see whether Harvard continues to hold out on this front. Doing so would certainly be a service to its students.

Of course, these are hardly the first signs of campus frustration with the new OCR requirements. Last fall, Inside Higher Ed published an anonymous piece by a college administrator who spoke forcefully about the impact that complying with the mandate was having on his or her campus. That piece, which Robert highlighted on The Torch, deserves a full read, and it is that much more worthy of revisiting in light of this week's articles. 

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