is OCR preventing Harvard from adopting Oberlin’s procedures?
Has some of the tide now shifted, on this thread?
I think Gertner nicely sums up a balanced approach, and perhaps her impeccable feminist credentials make it easier to accept that she doesn’t have an ulterior motive. My only criticism of her piece is that she doesn’t really come out clearly on whether a college should be using the preponderance of the evidence standard, but I take it that she’s saying that what’s important is that the overall procedural protections should be fair.
Yes, it does seem to have shifted quite a bit.
I thought she pretty strongly opposed the preponderance standard, but the article admits that the DOE’s OCR is requiring that, so Harvard had no real choice not to adopt it. She was more concerned with addressing the issues where Harvard was proposing to institute procedures that were not being forced on it, and suggesting that there was a better way.
Not going to happen to a sober monitor who has an attorney with a clue, i.e., only applies to sober monitors from poor and middle class who cannot afford top notch lawyers. But, to avoid this completely, all monitors are going to be given immunity.
Had a meeting this morning and afterwards mentioned this to both my senior counsel and executive counsel; they both cracked up, literally. They then spoke almost in unison, and finished each other’s sentences. They made three major points:
- They bet a sober monitor could be sued for liability, but that is not the biggest threat because the liability suit is easy to fight - the sober monitor would never be found guilty, but the school would - more on this in #3 below.
However, the sober monitor, most likely, will be sued if he walked in a room, stopped two people from making out or having sex because he thinks something wrong is going on and it gets around he did that. But then it turns out he is wrong, and the male and female were there voluntarily, even if they were intoxicated. Then the female could sue the monitor for invasion of privacy (and for violating her freedom of association) and for the resulting pain and suffering that occurs to her because of the monitor’s actions.
Yes, freedom of association in the Constitution applies to government, but there is also an implicit freedom of association in one’s right to privacy, which is a broader right. That is, an individual, not subject to a court order or other recognized legal restrictions, is free to privately associate with whom he or she wants. That though is the least of the violation.
More specifically, the right to privacy is violated on two fronts: 1) the female’s right to associate with a male of her choice was violated. However, the biggie is that 2) the Roe v Wade ruling was made on the grounds that a female can do what she wants with her own body. Therefore, the sober monitor, if wrong in stopping something, could be sued for violating the female’s right to privacy to do what she voluntarily wants with her body. The monitor has no right to decide for her. Both counsels think the monitor and the school would not have a prayer to prevail.
- Alternatively, in the case the monitor is sued for supposedly not stopping something, the monitor has strong defense and a stronger counter suit in civil court, i.e., that he is being sued based on known illegal and fraudulent behavior and that the fraud was planned by the the plaintiff.
Here is the analogy one counsel used: it is fraud to stand at the top of stairs and purposely make yourself fall, in order to get hurt so one can collect disability and insurance from an employer or personal insurance company. Throwing yourself down the stairs for such purposes is fraud.
Now, you are free to throw yourself down the stairs and hurt yourself, as long as you do not expect someone else to pay for your damages, i.e., you do not expect to transfer your liability and costs for your actions to another. However, it is actually a crime to do it for the express purpose of getting someone else to be held accountable and to pay for your actions.
In context of sexual assault on campus, is it not illegal for these female students to be drinking? Yes. Are these female students purposely and knowingly breaking the law to drink, while knowing full well in advance that one major result of their drinking most likely will be is that they get drunk and cannot take smart sexual decisions? Yes.
Therefore, it is fraud to sue the monitor for not stopping something from happening because a clear, intended expectation of one’s illegal drinking is: 1) one can knowingly transfer one’s liability and costs for drinking to another, i.e., drunk behavior and anything that might happen to you, and 2) one can knowingly make someone else responsible (and complicit) in your breaking of the law, illegal drinking.
In short, a sober monitor must first knowingly ignore the illegal drinking, i.e., the female would essentially be suing her “forced” accomplice for not helping her after she got in over her head. And, this where the school gets creamed…
- The monitor will simply state the school instructed (forced) him to ignore the illegal underage drinking and thus should not held responsible for anything that happens to the female drinkers because the school directed him to ignore their law breaking, not that he would have ignored it on his own. And the case would be made that the monitor is not a professional and does not have the diagnostic tools to make an accurate assessment that something was wrong.
The school then gets creamed for allowing illegal drinking and for trying to shield its non-enforcement by passing the responsibility to student monitors, a student who clearly has no fiduciary responsibility to the female lawbreakers, as there is no legal contract between the monitor and the drinkers. However, there is a contract between the school and the drinkers and the school simply is turning a blind eye and trying to shirk responsibility by openly allowing law-breaking.
While having sober monitors is excellent, as I stated, such have been around for a long time, just new to UVA. But, the purpose of the monitors is general order, NOT being forced to taking on the personal responsibility of others, which advocates are trying to give them.
Anyway, after the first suit, no parent will allow their kids to be monitors unless they have full immunity, so it will end quickly if drunk females try to transfer their liability and costs for illegal drinking and their own subsequent drunk behavior to a sober monitor. As one counsel says, you cannot knowingly speed in your car and then after crashing and getting hurt turn around and sue the highway patrol for not stopping you.
Preponderance bothers me, too. And also its use in civil court. But though all this talk, we need to realize what’s drawn attention is the extremes. Many colleges can have teams that do seek to be fair. That can get lost in the sentiments about possible false accusations, fear of kangaroo courts, expulsions, awareness of some lawsuits, etc, and the biggest examples of mis-handling.
I like a lot of what female HLS prof Gertner says.
But I agree more with what Elizabeth Bartholet (another female HLS prof) said recently:
“The federal government’s decision that Harvard Law School violated Title IX represents nothing more than the government’s flawed view of Title IX law. The Department of Education’s Office of Civil Rights, which issued the decision, is not the ultimate decision-maker on law. The courts are responsible for interpreting the law. And I trust that the courts will eventually reject the federal government’s current views. The courts’ decisions to date, including the U.S. Supreme Court, show a much more balanced approach to sexual harassment, one which recognizes the importance of vindicating the rights of those victimized by wrongful sexual misconduct, while at the same time protecting the rights of those wrongfully accused, and protecting the rights of individual autonomy in romantic relationships.”
“I believe that history will demonstrate the federal government’s position to be wrong, that our society will look back on this time as a moment of madness, and that Harvard University will be deeply shamed at the role it played in simply caving to the government’s position.”
There’s a pretty long parade of lefty-leaning Yale and Harvard law profs who have now called Bravo Sierra on this issue. I think their lefty-leaning friends/classmates at DOE/OCR are getting the message that they over-reached and it is now time to move on.
Jackie’s story turning out to be a complete hoax definitely changed the narrative on this. 1 in 5 RIP.
In principle Harvard could try changing their procedures to be the same as Oberlin’s, but in practice this is much easier said than done.
Here’s my understanding is what happens. As part of the negotiations to have the Title IX investigation closed/dropped, Harvard/Harvard’s legal counsel shows the OCR proposals for how they would modify their sexual assault procedures. If the OCR approves the entire package (which includes things beyond just the procedure modifications) then the Title IX investigation can be closed. In practice, the iterative negotiations with the OCR can be a very one sided process and the safest thing to do is to just copy a procedure that another school has gotten approved. The entire process could easily take years.
After getting the OCR’s blessing on their new procedures, Harvard would be loathe to modify them after the Title IX investigation is closed. This could easily be seen as dealing in bad faith and could easily provoke the OCR. I’d assume that Harvard isn’t going to want to reopen this issue for several years.
In theory Harvard could just run a hypothetical new policy by the OCR, but there’s lots of indirect evidence that that would not be productive. Schools like Harvard engage former DOJ insiders/their spouses/close relatives to advise them on what is likely to be well received. Also, the due process concerns are not exactly a secret. There are literally hundreds of articles raising objections. A reasonable person could infer that the OCR has already frowned upon prior proposals which had stronger due process protections.
I agree with this and I’ve pointed out that colleges and universities have a wide range of sanctions that can be applied. I think the vast majority of cases probably are settled in a fair manner that keeps the 2 people apart since in many cases the rest of the campus population is not threatened. But I’ve read on this forum and on many other comments to articles that there is a select group of female advocates who simply want women to be believed and males to be not believed and males to be expelled for ANY Title ix violation. I think the most recent commentary coming out of the courts and law offices engaged in Title IX issues are showing that not only is there not one singular method for resolving a Title IX code violation but that colleges will need to be sensitive to the due process rights of all parties. This is a good thing. I do not get the feeling that the OCR has frowned upon prior proposals which had stronger due process protections. I think the colleges have incorrectly presumed that the OCR would be fine with lack of due process…but what faulty logic - the Office of Civil Rights would not support well…civil rights of the accused?
Well, this where politics gets involved. And, the goals matter. The advocate/activist group to which you refer was not upset about Jackie’s story falling apart because of Jackie or even the frat. The story was designed to further their cause and they were active participants in getting it written and published. So, as Northwesty notes; it turning out to be a hoax was not some small sidebar type of development. It was a very big deal.
Unfortunately, I think it’s completely wrong to say that colleges have incorrectly presumed that the OCR would be fine with the lack of due process. They are quite correct in their presumption. Harvard’s new procedures (as well as those of a few dozen other colleges) have been fully blessed and approved by the OCR as part of their settlement with them.
Here’s one public example of the kind of logic the OCR has used - In their Dear Colleague letter of 2011 they require that schools use the preponderance of evidence standard. To support this this extension of their own authority, they cite court decisions that have mandated this standard for civil litigation under Title VII. Even if you grant this analogy, just think about it for a second. These court decisions did mandate the preponderance standard, but only in the context of court proceedings where both sides had the right to an attorney and there was a full discovery process, right to confront and cross examine witnesses, public proceedings, not to mention trial by jury (in at least one case), an independent judge, and the right of appeal to a different court. The OCR chose to pluck out ONE of these facts and impose them on schools’ procedures, completely ignoring the other protections that are also part of courts’ procedures. If the OCR is going to claim that procedures of civil litigation are binding then they should take ALL of them. To me, it’s completely flawed logic and clearly results oriented.
As far as I could find- and no one else commented- due process is only required at state schools. The wording I previously referred to seemed to make that clear. At this point, I don’t know how that manifests at publics.
If the OCR is going to claim that procedures of civil litigation are binding- are they? or is this intentionally selective, because this is not civil proceedings? And again, the distinction between state schools and privates.
LF – I think Simon has it pretty correct as a matter of substance (but perhaps not law). OCR (imho and Simon’s) was doing some procedural cherry picking in order to drive the desired outcome – i.e. get more assaults proven and punished.
From a legal perspective, there’s a lot of stuff that (technically speaking) is not absolutely required in a court proceeding but which is pretty universally recognized as a fundamental aspect of fairness.
For example, there’s no constitutional guarantee/requirement of cross-examination in civil proceedings. The Sixth Amendment confrontation clause only applies to criminal cases. But cross-examination is almost always made available in civil cases. Not because it is required but because it is fair. Similar situation for counsel – required in criminal cases (even if you can’t afford it); but always allowed in civil cases. Because that’s fair.
I don’t think due process is required (as a legal matter) at private colleges the way it is a state schools. But that doesn’t mean that private colleges should operate less fairly than state schools do.
I personally don’t think the preponderance vs. clear/convincing is all that big a deal in practice. I think there’s many other aspects that are more important to fairness – like experienced and independent arbiters and counsel rights. But the evidence standard is very symbolic, to me, of the OCR’s agenda to change outcomes at the expense of fairness.
LF @lookingforward - I don’t think I understand your point about due process and public vs. private schools. But remember that the issue is that the OCR is (de facto) prohibiting private schools from using procedures that many of them previously used and seem to want to continue using.
The OCR is clearly being deliberately selective about applying the case law regarding Title VII civil litigation to colleges’ grievance processes. My point was that, to me at least, this seems to be bordering on the absurd. I’m sure there’s plenty of case law to support both the accused and accuser having the right to retain an attorney in Title VII Federal civil litigation, but the OCR’s reasoning ignores this (of course, since it’s not a criminal case the public doesn’t have to pay for attorneys).
Here’s how our general counsel analyzes this – he’s not an expert on Title IX and gave it about 60 seconds of thought, but in addition to impeccable legal credentials (summa from a T5 law school, Supreme Court clerk, partner in a top 100 law firm at age 30) his ability to blend legal theory with commercial realities is top-notch: The OCR is probably a little worried that they’re walking out onto the thinner ice with their blanket prohibition against anything other than the preponderance standard. To paraphrase him, no one bothers to cite 4 court cases and to write a quarter page footnote to justify that 2+2 = 4. You only do it if you’re not on firm ground. They’re trying to meet three successively higher hurdles:
- will a court decide they acted capriciously or without some basis in statute? Almost certainly not; they’re safe here. 2) will this prevent a future administration from reversing the policy? It’ll most likely slow them down, and they’ll probably have to do a bit of work to justify a reversal. His best guess is that the policy could be reversed by a different administration if they wanted to 3) will a court strike down their regulation? Without Title IX expertise he has no idea.
I don’t think the courts will strike down the entire legislation because I think it is “fair” to separate two people that can’t get along and put them in different classes, different dorms. I think it’s fair of colleges to keep track of who is accusing who as part of a non-public record. Where the courts will strike down Title IX is if it is misinterpreted by the colleges to mean that they can expel anyone they ‘want’ accused of what amounts to a felony offense, put it on their record and have it follow them throughout their life in the absence of any criminal finding without due process and equal rights for both the accuser and the accused in a procedurally fair manner. i’m firmly on record of saying that I do not think colleges should be adjudicating anything related to felony offenses, but the trials, overturns and huge settlements are establishing just how far a college or university can legally stray from people’s civil rights.
And I think the people that vandalized the UVa frat house ought to be charged with - vandalism - and I think the college should support that with honor code violations.
I don’t disagree, NW, on the principle of fairness. But I don’t see the point as, to “get more assaults proven and punished.” Because it can be viewed as, to get more cases formally reviewed, on campus- in the environment in which they occur. The colleges are allowed the option of not finding the accused at fault. I see much of this as procedural. No one tells them the conclusions to draw, nor the punishments to mete out. (And let’s remember, the accuser retains the option to also take this to outside authorities.)
Al, granted, Princeton got in trouble for using “clear and convincing.” 75% versus the 50.1% in preponderance. But in reality, how does a college prove it used one over the other? (This would loop us way off this thread’s tracks, wonder if we shouldn’t go there.)
An article to chew on: https://www.insidehighered.com/news/2014/02/25/federal-campus-safety-rules-reignite-debate-over-standard-evidence .
With due respect, I’m also wondering how much bearing a non-expert lawyer’s opinion has. The other poster who referred to counsel’s comments also has not stated yet what this person’s familiarity is. Again, I see this as procedural. You’ve got a campus, you’ve got a problem, here’s what you need to do for your community, as a whole, and for the individuals involved.
@momofthreeboys There’s probably 0% chance that the courts will strike down Title IX. They could strike down some of OCR’s interpretive guidance or even some of their specific findings.
Agreed on the UVa frat house vandalism. It should make people think about mob mentalities and how little separates us from the Salem witch trials that we laugh at. But I disagree with some of your other points because I feel that colleges do need to be able to protect their students. The article you(?) posted about the Northwestern professor definitely troubled me; the guy seems like he doesn’t belong on a college campus. I’ll bet the fact that he’s tenured made it hard for Northwestern to find a better solution than the one they came up with.
@lookingforward - You’re probably right about not putting too much weight on the opinion of a non-expert attorney. I thought his comments were useful, but all I can really say is that his opinion is worth much more than mine 
Thanks for the link to the article. I’m not sure how much weight to put on the Foundation for Individual Rights in Education; I get the impression they may be quite ideological as well.
Here’s how I analyze the preponderance vs “clear and convincing” issue. As an economist, I think “on the margin”. In other words, what does the change from one standard to another mean. Thus, I focus on the convictions that would be obtained under a 50.1% standard that would not have been obtained under the “clear and convincing” standard. To me, these are precisely the most ambiguous and hardest to decide cases, where weak due process is most likely to be a big problem.
I think of the Yale case http://yaledailynews.com/blog/2014/11/07/after-uwc-complaint-two-students-wait/ as a very typical example of these “on the margin cases” … we have text messages sent from the woman inviting the guy up to her room with reasonable expectations of a sexual encounter, but at the same time she expresses ambivalence about whether it’s a good idea and makes it clear she’s been drinking very heavily. It seems to turn upon trying to decide how drunk she was. No idea how to decide this in this particular case other than flipping a coin - now that I think of it, this might meet the 50.1% standard (Sorry, but I couldn’t resist).
http://www.phillymag.com/articles/the-new-rules-of-college-sex/4/
This article goes back to the beginning and while it’s long, it’s pretty informative. And, I don’t see how the goal can be anything but a higher number of guilties. otherwise whatever is the point? A higher number of pseudo-trials cannot be the goal. That doesn’t make sense.