Last week, I participated in a March 13 panel discussion at the National Press Club titled “Bringing an End to Second-Class Justice,” where I discussed how federal micromanagement of college discipline by the Education Department ignores federal court rulings, increases college costs, and stacks the deck against some accused students. The following is the text of my remarks at the event, which was arranged by the organization Stop Abusive and Violent Environments.
A Stacked Deck: OCR and Sexual Harassment Liability
In the attached handouts, I have explained how the Office for Civil Rights, where I used to work, has made punishment of innocent students more likely, and in some cases, inevitable, through its rules on how colleges must handle sexual harassment allegations, which apply both to verbal harassment and sexual assault.
For example, in recent investigations, OCR has required that colleges impose “interim measures” against accused students before they ever receive a hearing on the charge against them, measures that can include expulsion from a dorm and classes shared with the accuser. In its April 2011 Dear Colleague letter to the nation’s colleges, OCR instructed to colleges to restrict cross-examination, even though the Supreme Court has declared that cross-examination is the “greatest legal engine ever invented for the discovery of truth.” It also ordered colleges to abolish the clear-and-convincing standard of evidence that was once the norm in college discipline.
OCR also has recently required some investigated colleges (such as Harvard and SUNY) to conduct “individual complaint reviews” for all allegations in past academic years to see if the college “took steps” against harassment in each case. That creates the risk of students being investigated all over again for an offense the college previously found them not guilty of, much like double jeopardy.
But a bigger threat to innocent students is the massive financial risk colleges face if they do not swiftly expel accused students. Thanks partly to OCR stacking the deck, it can be much cheaper for a college to expel a possibly innocent student than to find him not guilty. Even before OCR’s recent rules changes, colleges had massive incentives to suspend or expel students who might be guilty of sexual assault or harassment.
For example, last year, the University of Connecticut settled a Title IX lawsuit by paying $900,000 to a student who alleged sexual assault. In 2009, the University of Arizona paid $850,000. In 2007, the University of Colorado paid $2.5 million. A jury awarded $1 million against the Pine Plains school district to a racial harassment plaintiff. And if students win their Title IX lawsuit, the school also has to pay their attorney’s fees, under a pro-plaintiff rule known as the Christiansburg Garment rule.
Colleges’ financial risks are multiplied by the fact that in addition to being sued by students, OCR can cut off all their federal funds and student financial aid. OCR doesn’t view itself as being bound by a court’s earlier ruling rejecting a student’s harassment lawsuit, and it argues that the standard of culpability is less in an administrative investigation.
Moreover, although OCR is not likely to cut off a typical college’s federal funds, since a college will do whatever it takes to appease OCR and prevent that from happening, that doesn’t mean a college will not experience massive costs. When OCR investigates a college, it has to devote a small army of employees to cooperate with its investigation.
Moreover, even when no court would award damages, OCR will. It has recently given itself the power to award monetary damages against colleges, even in situations where the Supreme Court’s Davis decision says damages would be inappropriate under the Constitution’s spending clause. To resolve a recent OCR investigation, Tufts had to pay a complainant “monetary compensation,” even though OCR never specifically found that she was sexually assaulted, because OCR ruled that Tufts had wrongly allowed the accused to submit the complainant’s private medical records to show that the complainant had lied and that the accused thus was innocent.
In its April 29, 2014 harassment guidance, OCR generally imposes liability on institutions even if they do correctly discipline those they discover have engaged in sexual harassment, if they do not also “remedy its effects,” and “prevent its recurrence.” Even punishing the harasser “likely will not be sufficient,” OCR said. What does OCR mean by “remedy”? In its 2013 retaliation guidance, it suggests money, saying that “OCR will determine which remedies, including monetary relief, are appropriate based on the facts presented in each specific case.”
So in addition to being sued by complainants, colleges may also be forced to pay money by OCR.
And that’s just the beginning. In addition to suing the university itself under Title IX, the accuser can sometimes also sue individual state college officials under Section 1983, or individual officials even at private colleges under state sexual harassment laws that reach further than Title IX, like in New Jersey or Massachusetts.
By contrast, a state college that expels an innocent accused usually can’t be sued, even if he is probably innocent, since the accused only has a right to procedural due process, not any substantive finding of guilt or innocence. So as long as the school goes through the motions of giving him a fair hearing, it can usually kick him out even if he is not guilty.
Even if a student does successfully sue over a due process violation, it’s usually just the individual school officials who can be sued, not the university, since universities, unlike their staff, are shielded by the Eleventh Amendment against liability. Moreover, even students who win a due process lawsuit sometimes receive only $1 in damages, since showing the process was unfair doesn’t necessarily prove the accused would have been found not guilty after a procedurally fair hearing. And when the law’s application is fuzzy, individual officials can assert a defense known as qualified immunity that bars any damages at all even when a violation is proven.
Private colleges are not even bound by constitutional due-process guarantees, although they can sometimes be sued for breach of contract or consumer fraud. Lawsuits by railroaded male students typically don’t generate a damage award big enough to pay a lawyer’s bill, making it hard for them to obtain a lawyer unless they have a wealthy family. Courts only order the college to pay the student’s attorney’s fees in discrimination or harassment cases, not breach of contract cases. When a male student successfully sued the University of the South, he got only $26,500 in compensation, which was less than he was billed by his lawyer.
The net result of these financial incentives and OCR’s policies is to stack the deck against the accused in campus disciplinary proceedings over sexual harassment or assault.
And yet, at the same time, OCR has failed to encourage rape victims to report crimes to prosecutors, who can put rapists in jail where they belong and thus protect public safety. “Federal education officials who enforce” Title IX have said it “does not require schools to report alleged sexual violence to police,” noted The Washington Post on January 26, and, indeed, when Virginia state senators sought to mandate reporting of all rapes to the police, OCR’s interpretation of Title IX apparently proved an obstacle. The Chairman of the House Courts of Justice Committee “said the Senate bill may violate Title IX confidentiality requirements” mandated by OCR.