Colleges get reprieve on acting as quasi judicial systems for Title IX complaints
Very few college attorneys will soon forget the US Department of Education Office of Civil Rights April 2011 “Dear Colleague” letter that dictated to colleges and universities how they were to address complaints of sexual violence. The guidance provided in those 19 pages signed by Russlynn Ali, then Assistant Secretary for Civil Rights, pushed higher ed institutions to use a much lower bar (a preponderance of evidence as opposed to beyond a reasonable doubt standard) as the trigger for disciplinary action on such complaints. It also allowed for double jeopardy in that both the accused and the accuser could appeal a decision of the university disciplinary team. So even if a student was found innocent of the charges, they could be required to go through another whole investigation and “trial”. The length of time for final resolution on any particular complaint rose dramatically resulting in some freshmen not having their case completed by the time they reached graduation.
This month, the OCR issued revised guidance aimed at addressing and resolving complaints in a more timely manner. A new guidance letter by Candice E. Jackson, acting assistant secretary for the Office for Civil Rights, says “OCR’s goal is to swiftly address compliance issues raised by individual complaint allegations, reach reasonable resolution agreement with defined, enforceable obligations place upon recipients directly responsive to addressing the concerns raised in the individual complaint being resolved, and encourage voluntary settlements wherever possible.” The filing of a single complaint would not automatically trigger an investigation of at least 3 prior years worth of complaints to determine if there was a systemic problem. These types of requirements were not only burdensome for the university but also slowed justice for the complainant.
At a speech before the National Association of College and University Attorneys, Jackson and Thomas E. Wheeler, acting assistant attorney general at the U.S. Department of Justice said that their offices will no longer treat informal guidance as a formal regulation, requiring the colleges to comply with specific measures. This is welcome news for college attorneys facing lawsuits from the accused over their loss of 4th amendment protections in the quasi-judicial proceedings laid out in the Dear Colleague letter.(read about more cases here.)
One such case in Texas involved a male student accused by a woman who was not even a student at the University of Texas Austin and who never filed a complaint with the University or a police report of the incident. The accused was threatened with expulsion with just one semester to go until graduation and adamantly denied the accusation.
The University of Missouri had its own troubles with the 2011 guidelines in the case of swimmer Sasha Menu Courey. A sexual assault by 1-3 Mizzou football players, that she herself never reported to campus officials (except counseling staff who could not break doctor-patient confidentiality) nor to local police was discovered in 2012 after her suicide in 2011. The only evidence, once university administrators learned of the attack, was an account by another football player of a video of the assault which could not be found and an online chat Menu Courey had with a rape crisis counselor. Based on the evidence available, without the testimony of Menu Courey herself, the administration would have to decide if there was a preponderance of evidence against the three players. And regardless of their decision, if the players were no longer at the university their options for discipline would be severely limited. (read more about the case here.) The administration chose to not investigate the alleged assault.
This new position coming from the OCR joins other recent changes made by the department reversing guidance from the previous administration. In February the department rescinded the guidance on transgender accommodations stating that the previous policy was written arbitrarily “without due regard for the primary role of the states and local school districts in establishing educational policy.” In essence they returned control of education decisions to the states and local school districts where it belongs.
The latest on Title IX procedures should be good news for Mizzou which doesn’t need more expensive bureaucracy. The university has had to make 5% across the board budget cuts which include severe employee cutbacks and a hiring freeze. They have also been considering new revenue generating options like renting out empty dorm rooms and seeking book donations for the library.