Dear Colleague Letter

[This article is part of the nine-part series, “The Death of Campus Due Process,” which examines the policies used by colleges and universities to investigate allegations of sexual assault.

The series examines the civil case, “John Doe v. Brandeis University.” The case concerns the college’s investigation into whether a former Brandeis student committed sexual assault against his ex-boyfriend during their relationship.

These articles might not make sense if they are read out of order. Here is the table of contents for this series. I highly encourage readers to take their time reading these posts, as many are long and detailed. I also recommend reading the hyperlinked primary-source documents to learn more about the case.] 

Colleges and universities shaped their policies regarding sexual assault in response to a 2011 letter that outlined the U.S. Department of Education’s interpretation of a federal civil rights law.

Title IX (pronounced “title nine”) is a subsection of the Education Amendments of 1972, which was approved by both houses of the U.S. Congress and signed into law by President Richard Nixon.

Title IX states, “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving federal financial assistance.”

Title IX is perhaps best known for requiring schools to provide equal opportunity for men and women to participate in athletic programs.

But the law applies to many other school policies as well.

 In April 2011, Russlynn Ali, Assistant Secretary for Civil Rights at the U.S. Department of Education, an Obama Administration official, wrote a Dear Colleague letter to schools across the country.

Primary Source: 2011 Sexual Violence Dear Colleague Letter

President Barack Obama nominated Russlynn Ali, shown above, to be Assistant Secretary for Civil Rights at the Department of Education.

 Ali was appointed by Obama and confirmed by the US Senate in 2009. 

In the letter, Ali explained how the Office for Civil Rights (OCR), a subdivision of the U.S. Department of Education, interprets schools’ responsibilities under Title IX with regards to allegations of sexual violence.

Supporters of the letter believe that its guidance encourages colleges and universities to adopt policies that protect victims of sexual violence, allowing victims to continue to access higher education. Opponents of the letter believe that its requirements eliminate essential due process rights for students accused of sexual misconduct.

It might not be immediately clear from the text of Title IX that it places any requirements on colleges regarding sexual violence. The law addresses sex discrimination and doesn’t so much as mention sexual assault, sexual violence, or any similar term.

To understand Ali and the Obama administration’s interpretation of Title IX, it’s best to think of the law as if it were a Russian Matryoshka doll. A Matryoshka doll is a wooden doll that opens up to reveal a smaller doll inside. Inside the smaller doll, there is a third, even smaller doll.  

The Dear Colleague letter interprets Title IX like one of these Russian dolls. Sexual violence is viewed as a form of sexual harassment and sexual harassment is viewed as a form of sex discrimination, which the Office of Civil Rights has the power to regulate under Title IX. 

 Federal courts and the Obama Administration interpreted Title IX as if it were a Russian doll. 

The U.S. Supreme Court and federal judges created this Russian-doll interpretation of Title IX over the course of several decades through a series of interlocking legal precedents.

The Dear Colleague letter outlines several policies colleges must follow to be consistent with OCR’s interpretation of Title IX.

The letter defines sexual violence as, “physical acts perpetrated against a person’s will or where a person is incapable of giving consent due to the victim’s use of drugs or alcohol.”

The letter further clarifies that it interprets Title IX’s prohibition of sexual violence to include rape, sexual assault, sexual battery and sexual coercion.

The letter requires that a school’s nondiscrimination policy cover acts of sexual harassment and sexual violence.

According to the letter, colleges and universities have a responsibility to conduct a prompt, thorough, and impartial investigation if a student alleges that he or she has been sexually victimized by another student. Colleges must conduct this investigation, even if law enforcement officers are conducting a criminal investigation into the same conduct.

The letter further outlines OCR’s requirements for how the school’s investigation should proceed.

Prior to the completion of the investigation, schools, “must take immediate steps to protect the student in the educational setting,” if necessary. Schools may also, “prohibit the alleged perpetrator from having any contact with the complainant, pending the results of the school’s investigation.”

Critics of the letter say such actions punish an accused student before he or she has been found responsible of any wrong-doing.

OCR also prohibited schools from allowing an accused student or an alleged victim to directly cross-examine the other person during the investigation.

“OCR strongly discourages schools from allowing the parties personally to question or cross-examine each other during the hearing,” the letter states. “Allowing an alleged perpetrator to question an alleged victim directly may be traumatic or intimidating, thereby possibly escalating or perpetuating a hostile environment.”

Opponents of the letter say that this requirement eliminated a critical protection for students accused of sexual misconduct.

Sexual violence cases are incredibly difficult to prove in the criminal justice system because juries often don’t have much more to work with than the claims of an alleged victim and the accused. That is why these trials are sometimes referred to as “he said/she said” cases.

During a criminal trial, a defendant’s lawyer can cross-examine victims if a prosecutor presents them to testify before the jury. Critics of the Dear Colleague letter say that preventing cross-examination makes it difficult for an accused student to challenge the allegations against him or her.

The Dear Colleague letter also states that these investigations must use a “preponderance of evidence” standard to determine if someone is responsible for committing an act of sexual violence. The preponderance of evidence standard requires that it be more likely than not that a student committed a violation of the school’s sexual violence policy for the student to be found guilty.

This is the standard used in civil cases in the United States, and it would be the standard applied if an alleged victim of sexual violence sued a university for failing to uphold its responsibilities under Title IX.

In criminal cases, a defendant can be convicted only if he or she is found guilty of breaking a law “beyond a reasonable doubt.” This is a significantly higher standard than the preponderance of evidence requirement.

Prior to the Dear Colleague letter, many colleges used a “clear and convincing” standard to determine if students were guilty of committing an act of sexual violence. This standard is harder to prove than “preponderance of evidence” but easier to prove than “beyond a reasonable doubt.”

By lowering the standard of proof required for a student to be found guilty, OCR made it more likely that an investigation would result in a finding that a student was responsible for committing an act of sexual violence.

The letter concludes by stating that it hopes schools voluntarily comply with its interpretation of their Title IX requirements. If OCR determines a school is out of compliance with the federal law, however, the letter states the agency may, “initiate proceedings to withdraw federal funding by the department.”

While schools are responsible for setting their own sex discrimination, sexual harassment, and sexual violence policies, they are under intense pressure to conform with OCR’s interpretation of their requirements under Title IX, at least if they wish to continue to receive federal funding.

The policy recommendations in the Dear Colleague letter played a significant role in the procedures used by Brandeis University to investigate a student accused of sexual misconduct in 2014. Brandeis’s investigation illustrates the impact that OCR’s sexual assault policies have had on college campuses throughout the US.