[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.
