I’m at CSICon this weekend, with very limited time for writing. This repost, originally published here, touches on the conversations we continue to have about balancing rights. It seemed a good time to revisit the post.
This weekend, Peter Berkowitz published a piece in the opinion section of The Wall Street Journal that probably ought to raise serious questions about his abilities as a scholar. The Stanford fellow was all up in arms over guidance to federally funded schools and programs on dealing with sexual violence as a civil rights issue under Title IX. In his letter, titled “College Rape Accusations and the Presumption of Male Guilt” and subtitled “Pressured by the Obama administration, universities abandon any pretense of due process in sexual assault cases.”, he wrote:
Our universities impair liberal education not only by what they teach and do not teach in classrooms but also by the illiberal rules they promulgate to regulate speech and conduct outside of class.
The Obama administration has aggravated the problem. On April 4, Assistant Secretary for Civil Rights Russlynn Ali, head of the Department of Education’s Office for Civil Rights (OCR), distributed a 19-page “Dear Colleague” letter to “provide recipients with information to assist them in meeting their obligations.”
At the cost of losing federal funding—on which all major institutions of higher education have grown dependent—colleges and universities are obliged under Title IX of the Civil Rights Act (which prohibits discrimination on the basis of sex) to thoroughly investigate all allegations of sexual harassment and sexual assault on campus, including the felony of rape. They are also obliged, according to Ms. Ali, to curtail due process rights of the accused.
Now, of course, it isn’t his opinions on how universities ought to be run that suggests his value as a scholar is limited, but his apparent unwillingness or inability to read the letter he was complaining about. For all his vitriol, it is both a needed and a rather unremarkable document. You can read it for yourself. It begins:
Education has long been recognized as the great equalizer in America. The U.S. Department of Education and its Office for Civil Rights (OCR) believe that providing all students with an educational environment free from discrimination is extremely important. The sexual harassment of students, including sexual violence, interferes with students’ right to receive an education free from discrimination and, in the case of sexual violence, is a crime.
Title IX of the Education Amendments of 1972 (Title IX), 20 U.S.C. §§ 1681 et seq., and its implementing regulations, 34 C.F.R. Part 106, prohibit discrimination on the basis of sex in education programs or activities operated by recipients of Federal financial assistance. Sexual harassment of students, which includes acts of sexual violence, is a form of sex discrimination prohibited by Title IX. In order to assist recipients, which include school districts, colleges, and universities (hereinafter “schools” or “recipients”) in meeting these obligations, this letter explains that the requirements of Title IX pertaining to sexual harassment also cover sexual violence, and lays out the specific Title IX requirements applicable to sexual violence.
The first thing to note about this letter is that it is desperately needed, particularly at the junior high and high school level. Despite what reading Berkowitz could lead you to believe, this letter is not aimed at colleges and universities. It’s aimed at all educational establishments, and the timing (given that we can’t send it back in a time machine several years) is excellent. When a cheerleader is forced to cheer for an athlete whom the school knows has been accused of raping her, we need this letter. When a child is expelled from school for reporting a rape, and when the response of the school to this child being raped a second time–on school property–by the same assailant is to say that “the girl failed and neglected to use reasonable means to protect her self,” we need this letter. It was about damned time.
It is also worth noting that despite Berkowitz’s sneer about women being a majority on campus (thus surely not in any need of any consideration in this setting where the authorities are still predominantly men) and use of the male pronoun for anyone adversely affected by enforcing Title IX’s requirements on sexual violence, the report itself highlights the fact that males are also protected by these requirements:
The statistics on sexual violence are both deeply troubling and a call to action for the nation. A report prepared for the National Institute of Justice found that about 1 in 5 women are victims of completed or attempted sexual assault while in college. The report also found that approximately 6.1 percent of males were victims of completed or attempted sexual assault during college. According to data collected under the Jeanne Clery Disclosure of Campus Security and Campus Crime Statistics Act (Clery Act), 20 U.S.C. § 1092(f), in 2009, college campuses reported nearly 3,300 forcible sex offenses as defined by the Clery Act. This problem is not limited to college. During the 2007-2008 school year, there were 800 reported incidents of rape and attempted rape and 3,800 reported incidents of other sexual batteries at public high schools. Additionally, the likelihood that a woman with intellectual disabilities will be sexually assaulted is estimated to be significantly higher than the general population. The Department is deeply concerned about this problem and is committed to ensuring that all students feel safe in their school, so that they have the opportunity to benefit fully from the school’s programs and activities.
Title IX protects the civil rights of all students, not just females, from discrimination based on sex. That means that male students are also protected from those like Berkowitz who gloss over the rape of men and boys in order to make their points.
But what is Berkowitz’s point? What is his main complaint? Right, that the Obama administration is weakening due process on campus.
OCR’s new interpretation of Title IX “strongly discourages” universities from permitting the accused “to question or cross-examine the accuser” during the hearing. In addition, if universities provide an appeals process, it must be available to both parties—which subjects the accused to double jeopardy.
Most egregiously, OCR requires universities to render judgment using “a preponderance of the evidence” standard. This means that in a rape case, a campus disciplinary board of faculty, administrators and perhaps students serves as both judge and jury. Few if any of these judges are likely to have professional competence in fact-gathering, evidence analysis or judicial procedure. Yet to deliver a verdict of guilty, they need only believe that the accused is more likely than not to have committed the crime.
This is the lowest standard. It is much less demanding than “beyond a reasonable doubt,” which is used in the criminal justice system, and the intermediate standard of “clear and convincing proof.” Yale, Stanford and many other universities have rushed to comply with OCR’s directives.
On campus, where casual sex is celebrated and is frequently fueled by alcohol, the ambiguity that often attends sexual encounters is heightened and the risk of error in rape cases is increased. The consequences for a wrongly convicted student are devastating: Not only is he likely to be expelled, but he may well be barred from graduate or professional school and certain government agencies, suffer irreparable damage to his reputation, and still be exposed to criminal prosecution.
This is where I really start to question Berkowitz’s basic fitness to comment on this issue. Despite the OCR letter itself being quite clear on the topic:
In some cases, the conduct may constitute both sexual harassment under Title IX and criminal activity. Police investigations may be useful for fact-gathering; but because the standards for criminal investigations are different, police investigations or reports are not determinative of whether sexual harassment or violence violates Title IX. Conduct may constitute unlawful sexual harassment under Title IX even if the police do not have sufficient evidence of a criminal violation. In addition, a criminal investigation into allegations of sexual violence does not relieve the school of its duty under Title IX to resolve complaints promptly and equitably.
Berkowitz can’t seem to tell the difference between an administrative procedure designed to make sure all students’ civil rights are being protected and a criminal trial. In case he needs the clarification, only in a trial is one convicted, and it is only in a trial that the Fifth Amendment protection from double jeopardy applies.
Nor does a Title IX complaint procedure constitute double jeopardy. It serves a different purpose than a criminal complaint–to ensure that the civil rights of all the school’s students are served in an equitable way. This becomes quite obvious if one reads the entirety of the section of the letter from which Berkowitz snipped his quotes:
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. Like Title IX, Title VII prohibits discrimination on the basis of sex. OCR also uses a preponderance of the evidence standard when it resolves complaints against recipients. For instance, OCR’s Case Processing Manual requires that a noncompliance determination be supported by the preponderance of the evidence when resolving allegations of discrimination under all the statutes enforced by OCR, including Title IX. OCR also uses a preponderance of the evidence standard in its fund termination administrative hearings. 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.
Throughout a school’s Title IX investigation, including at any hearing, the parties must have an equal opportunity to present relevant witnesses and other evidence. The complainant and the alleged perpetrator must be afforded similar and timely access to any information that will be used at the hearing. For example, a school should not conduct a pre-hearing meeting during which only the alleged perpetrator is present and given an opportunity to present his or her side of the story, unless a similar meeting takes place with the complainant; a hearing officer or disciplinary board should not allow only the alleged perpetrator to present character witnesses at a hearing; and a school should not allow the alleged perpetrator to review the complainant’s statement without also allowing the complainant to review the alleged perpetrator’s statement.
While OCR does not require schools to permit parties to have lawyers at any stage of the proceedings, if a school chooses to allow the parties to have their lawyers participate in the proceedings, it must do so equally for both parties. Additionally, any school-imposed restrictions on the ability of lawyers to speak or otherwise participate in the proceedings should apply equally. OCR strongly discourages schools from allowing the parties personally to question or cross-examine each other during the hearing. Allowing an alleged perpetrator to question an alleged victim directly may be traumatic or intimidating, thereby possibly escalating or perpetuating a hostile environment. OCR also recommends that schools provide an appeals process. If a school provides for appeal of the findings or remedy, it must do so for both parties. Schools must maintain documentation of all proceedings, which may include written findings of facts, transcripts, or audio recordings.
Note that the “to question or cross-examine the accuser” quote that Berkowitz presents isn’t actually in the OCR letter. There is a power shift being required by this letter, but it isn’t nearly the shift away from a presumption of innocence that he represents it to be. It is simply an acknowledgement that if schools fail to protect the rights of the accused and the accuser, that they will be reinforcing a fundamental inequality.
The letter from the OCR is a rather remarkable document in that respect. I suggest reading the whole thing. It addresses, in a more practical way than Berkowitz’s poetical hand-wringing, the problems of alcohol and sexual assault. It also has guidelines for drafting educational materials, which might be entertaining to compare to Berkowitz’s paranoid fantasy of the same.
Or if you’re short on time, you might just want to read the end of Berkowitz’s piece, with its overblown invocations of the major fields of human knowledge to lament that no one (no one!) in power seems to agree with him on this topic. Unlike the rest of his letter, it’s both entertaining and reassuring.