Education Department rewards lying by twisting Title IX

Education Department rewards lying by twisting Title IX

The Education Department’s Office for Civil Rights, where I used to work, is gradually turning Title IX into a license to lie about sexual harassment and assault. And it is thumbing its nose at federal court rulings in doing so. Courts have ruled that dishonest people who bring sexual harassment charges over conduct they falsely claim was unwelcome can be fired, in cases such as Vasconcelos v. Meese (1990). And they have recognized that sexual slander and smears can create a sexually hostile environment in violation of federal law in cases such as Jew v. University of Iowa (1990) and Spain v. Gallegos (1994).

But in a recent investigation finding Michigan State University in violation of Title IX, OCR required college administrators to offer “remedies” to “Student A,” who both OCR and the university found had made a false allegation of unwelcome sexual misconduct against two fellow students. OCR’s reasoning was that the university did not begin proceedings against the accused students fast enough (even though it immediately kicked them out of their dorm and ordered them to stay away from the accuser).

But the lack of an immediate investigation was not because the university was in any way unsympathetic to victims. Rather, it was due to the fact that the complainant decided not to file formal college charges against the accused (the criminal justice system found her complaint so unbelievable that the accused were never charged, and she declined to pursue formal charges at the college level). It is absurd to demand swift college prosecution of innocent people when the accuser herself does not demand it.

The accused students, whose lives were turned upside down by the charges, were innocent. The university investigator ultimately found their conduct was welcome, and thus not sexual harassment or assault. Moreover, OCR itself noted in pages 30-31 of its investigative report that “OCR’s review of the investigator’s report and his supporting documentation led OCR to conclude that the preponderance of the evidence did not support a finding that Student A was subjected to unwelcome sexual conduct that created a sexually hostile environment.”

Yet, OCR suggested the college should “remedy” the imaginary harm caused by its failure not to process her false complaint faster.  On pages 40-41 of its report, OCR declares that “under the terms of” its agreement with the university, “the University will … contact Student A” and “offer” her “remedies to address any harm incurred as a result of the University’s delay in processing [her] complaints,” which might involve things like paying for counseling, providing academic assistance, or letting her retake a class she was enrolled in during that period.

This demand by the Education Department raised eyebrows even at liberal-leaning publications such as the Chronicle of Higher Education, which noted that “the department’s 42-page letter outlining its findings is an illustration of just how difficult it can be for colleges to comply with the beefed-up interpretation of the federal gender-equity law known as Title IX.”

As it observed, after Student A complained to police and the university hospital of being assaulted, the university took action the very next day to protect her, by kicking the accused students out of their dorm and telling them to avoid the complainant:

The next day, university officials met with the two accused students, telling them to avoid social gatherings and not to contact Student A. Meanwhile, the university arranged to move the students into a different dormitory.

Such action against the accused is known as an “interim measure,” since it is a temporary measure imposed on people even before they are found guilty, and even though they later may be found innocent. Such measures can raise serious due-process issues when they last for a long time; are based on very dubious charges; or inflict serious financial or educational harm on the accused. Yet the Education Department has pressed colleges to routinely impose such measures, as I discussed in 2014.

As the Chronicle noted, Student A herself did not even “file a sexual-harassment complaint with the university”:

Days after Student A reported the assault, the county prosecutor’s office announced it would not press charges against the accused students. Student A then told Michigan State she had decided not to file a sexual-harassment complaint with the university, saying she was mainly concerned about running into the men in their residence hall (they’d been reassigned by this point). She got … personal-protection orders forbidding the two male students to follow her or to communicate with her, among other things. University staff members met with the male students to make sure they understood what they were allowed to do.

After all that, university officials considered the matter closed.

But when the Office for Civil Rights got wind of media reports about the alleged assault, it reached out to Michigan State and “offered technical assistance.” Soon after, the university began an outside Title IX investigation to determine if the alleged assault had violated its sexual-harassment policies, even though the student had still not filed a formal complaint.

While that investigation was going on, Student A ran into the male students on the campus more than once, and complained that their failure to actively avoid her constituted violations … In one instance, she saw them studying with a tutor in an academic building and sat in sight of them for 30 minutes… After she reported the episode to the university, it decided to confine the students to a study area separate from Student A’s, and made them use a different entrance from the rest of the students. (In its letter, the Office for Civil Rights praises the university for taking that step.)

The outside investigator finished work at the end of 2010, and determined that there was not enough evidence to suggest the university’s harassment policy had been violated. The Office for Civil Rights agreed, saying in Tuesday’s letter that the investigation was “thorough and adequate” and that evidence did not support the claim that Student A had been subjected to unwelcome sexual conduct.

Since Student A’s complaint was false, and the college immediately shielded her from exposure to the accused (protecting her from any potential retaliation), what possible harm could she have experienced from the university not investigating her charges faster?  How would she have benefited from the university discovering faster that she was apparently a liar? Keep in mind that its discovery that her charges were false may have undermined any argument she might otherwise have had for extending the no-contact orders imposed on the men falsely accused, and for excluding them from shared areas on campus (orders she wanted the college to enforce).  This may have been the very reason she didn’t ask for (and apparently didn’t even want) a formal investigation.

In short, contrary to what OCR suggested in its investigative report, there was simply no harm to Student A from the university’s “delay” in formally “processing” her accusation.  How can you remedy a non-existent harm?  Yet, OCR’s investigate report requires MSU to contact Student A to offer her “remedies” for that “delay.”  But logically, what possible “remedies” could there be?

Yet, this is not the first time that OCR required remedies for a student who apparently lied. In an April 28, 2014 letter announcing the results of its investigation of Tufts University, it complained that the university allowed in certain evidence of an accused student’s innocence, leading to Tufts finding him not guilty of sexual assault, rather than excluding it as untimely or inadmissible. For example, OCR criticized Tufts for “allowing the Accused to submit an Addendum” responding to the charges after the deadline, and letting him show the complainant lied about her medical history, which he obtained by pretending to be a medical student. To resolve the investigation, Tufts had to pay the complainant “monetary compensation,” even though OCR never specifically found that she was sexually assaulted, and even though OCR lacks the statutory authority to award monetary damages.

It also found Tufts in violation of Title IX because it took over a month before “requiring the Accused to move out of the residence hall,” and left her to attending a class “together with the Accused” rather than barring him from that class, which “thus exposed” her “to close physical proximity to the Accused.” But if the accused was not guilty of sexual assault, then he was not dangerous, and the complainant had no right to demand that he be excluded from his classes and dorm.

Contrary to OCR’s weird, unjust, and illogical interpretation of Title IX, no court has ever found an institution in violation of Title IX, or any federal law against sexual harassment, for failure to remove an accused person from proximity to the complainant when the accused was not actually guilty of severe sexual harassment. Indeed, courts often rule for institutions sued for harassment even when the accused individual was guilty, and the institution either never removed the accused from proximity to the complainant (even after disciplining him), or only removed him after he was found guilty, and declined to do so while an investigation was pending.

OCR has discouraged colleges from allowing cross-examination by the accused, even though the Supreme Court described cross-examination as the “greatest legal engine ever invented for the discovery of truth” in Lilly v. Virginia (1999), and even though a judge required a college to allow cross-examination in Donohue v. Baker (1997).

It has also sought to gut the presumption of innocence. The Yale Law Journal noted in 1987 that “courts, universities, and student defendants all seem to agree that the appropriate standard of proof in student disciplinary cases is one of ‘clear and convincing’ evidence.” But in an April 4, 2011 letter to the nation’s colleges, the Office for Civil Rights declared this standard illegal in sexual harassment and assault cases.

Smacking of double jeopardy, it has also forced colleges like Southern Methodist University to review past dismissals of complaints (even when those dismissals were not challenged by any complainant), and resolve them to OCR’s liking — potentially resulting in discipline of a student previously found not guilty a year or two earlier.

And it has sought to redefine constitutionally-protected speech as verbal “sexual harassment,” such as by telling colleges like Harvard and MSU to regulate off-campus conduct (apparently including speech on the “internet“), and by pressuring Tufts to regulate academic speech not even “directed at” the complainant (generally protected under the 2010 Rodriguez decision).

Hans Bader

Hans Bader

Hans Bader practices law in Washington, D.C. After studying economics and history at the University of Virginia and law at Harvard, he practiced civil-rights, international-trade, and constitutional law. Hans also writes for CNS News and has appeared on C-SPAN’s “Washington Journal.”


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