In response to alarming statistics indicating that sexual violence is widespread at colleges and universities—and growing pressure from activists to do something about it—the Obama administration’s Department of Education has taken aggressive steps to enforce Title IX of the Education Amendments against sexual harassment and violence on campus. And if press reports and the chatter of professors and administrators are to be believed, the results have been disastrous: students accused of rape being tried by kangaroo courts; a prominent feminist professor subject to interrogation by lawyers for writing an op-ed criticizing new restrictions on sex between teachers and students; and even a tenured professor being fired for saying “Fuck no” in class. Another example of well-intentioned government regulation gone horribly awry!
But the story is not so simple. To blame are two bureaucracies, one at the federal level, the other within individual colleges and universities, each emphasizing compliance over communication and common sense. Universities, perhaps stung by being called out on their prior inaction, overreached by allowing a class of professional campus administrators, insulated from the classroom, to pursue a maximally risk-averse strategy that went way beyond what the federal government was calling for and that put important values of academic freedom and fair process at risk on their campuses. At the same time, regulators in Obama’s Department of Education failed to do the early outreach that would have allowed them to see this overreaction coming, and compounded that mistake by failing to emphasize the limits as well as the requirements of Title IX. By so doing the department has threatened to bring into disrepute its own crucial effort to rid campuses of sexual violence and harassment.
Best known for its effects in promoting women’s sports, Title IX in fact prohibits all forms of sex-based discrimination—including sex-based violence—on campus. But court decisions have made it very difficult for individual targets of discrimination to enforce that prohibition. And the Department of Education historically has not used its enforcement authority aggressively against sexual harassment and violence.
All of that has changed in the Obama administration. In administrative pronouncements issued in 2011 and 2014, the department’s Office for Civil Rights (OCR) emphasized and elaborated on schools’ obligations to prevent sexual harassment and assault. As of April 2015, the OCR was investigating more than 100 schools regarding their handling of cases involving sexual violence.
Critics have leveled a growing bill of particulars against the new enforcement efforts. In October 2014, twenty-eight professors at Harvard Law School—representing positions across the political spectrum—signed an open letter opposing Harvard University’s new procedures for handling complaints of sexual misconduct. The faculty members alleged that those new procedures, prompted by the Department of Education’s actions, “lack the most basic elements of fairness and due process” and “are overwhelmingly stacked against the accused.”
These and other critics have focused, in particular, on the procedures’ requirement that university adjudicators apply only a preponderance-of-the-evidence standard for determining whether an accused individual is responsible for sexual misconduct. Under that standard, which generally applies in civil suits in the United States, the defendant is liable if the adjudicator determines that there is a more than 50 percent chance that the defendant has committed the act with which the plaintiff charged him. That standard is a far less stringent one than the beyond-a-reasonable-doubt requirement that applies to criminal prosecutions. Yale Law School professor Jed Rubenfeld argues that the application of the preponderance standard makes “[m]istaken findings of guilt” a “real possibility.” Echoing the views of many administrators, he suggests that campus procedures for handling sexual assault claims should be designed to channel those claims to the criminal justice system, where presumably expert investigators and prosecutors can handle them properly.
Other critics have focused on perceived excesses in universities’ investigations of alleged harassing remarks by faculty and students. Northwestern University’s treatment of professor Laura Kipnis has served as a prime example. A cultural critic, Kipnis published a widely noted essay in February 2015 arguing that universities’ recent moves to prohibit sexual relationships between faculty and their adult students had gone too far. In the course of her essay, Kipnis discussed a recent case at Northwestern in which an undergraduate student accused a professor of unwanted sexual contact and charged that the university’s sanction (denying the professor a raise and stripping him of his named chair) was insufficient. Without naming any names (though linking to a previous news article that named the professor), Kipnis expressed skepticism of the student’s claim and called it “a mess” and “melodrama.”
In response, two students claimed that Kipnis’s essay illegally retaliated against them for complaining about violations of Title IX. The university hired a law firm to investigate that complaint. As Michelle Goldberg of the Nation reported, Kipnis “was forced to submit to hours of questioning about her essay and the ideas underlying it.” Northwestern closed the case only after Kipnis herself published a new essay about what she called her “Title IX Inquisition,” which provoked widespread criticism of the university’s conduct.
And in the most recent case to draw critics’ attention, the Louisiana State University fired an award-winning tenured professor of education for engaging in an alleged pattern of harassment. The professor, Teresa Buchanan, points to a faculty report that “cited three ‘notable’ instances of vulgarity on Buchanan’s part: saying ‘F*** no’ repeatedly in the presence of students, using a slang term for vagina that implies cowardice and telling a joke that the quality of sex gets worse the longer a relationship lasts.” Buchanan has announced that she will sue the university, and the American Association of University Professors has expressed support for her case. LSU contends that Buchanan’s offenses went well beyond simply saying “Fuck no” in class, and the matter will no doubt be settled in court.
The critics have a point about these cases. The Harvard sexual misconduct policies do raise troubling fair-process concerns, Kipnis’s “inquisition” was inappropriate by any measure, and, if Buchanan’s supporters are accurately relaying the basis for her termination, LSU’s actions represent a real threat to academic freedom. But nothing in Title IX—nor, crucially, in the Department of Education’s recent pronouncements about that statute—required Harvard, Northwestern, or LSU to take the actions that have drawn such criticism.
Start with the Kipnis and Buchanan cases. There is nothing in Title IX, its implementing regulations, or the recent government pronouncements that purports to require universities to do what the universities did in those cases. When the students filed a complaint with Northwestern alleging that Kipnis’s article and tweet retaliated against them in violation of Title IX, the university was required to investigate it. But the investigation should have been nearly instantaneous. It should have been obvious from the face of the complaint that a published essay and a tweet, from a professor who neither named nor had any power to do harm to the students who complained, could not possibly constitute impermissible retaliation against them under the statute. The university could have, and should have, simply dismissed the complaint without requiring Kipnis to submit to an “inquisition.”
Similarly, if the facts are as Buchanan has alleged, there is nothing in her conduct that constituted sexual harassment under Title IX. As the Supreme Court has emphasized, laws prohibiting discriminatory harassment do not establish a “general civility code.” Rather, the Court has explained that Title IX prohibits in-class harassment only when it discriminates based on sex and when it “is so severe, pervasive, and objectively offensive that it effectively bars the victim’s access to an educational opportunity or benefit.” Repeatedly saying “Fuck no” in a college classroom, or telling a single sexually themed joke, hardly comes close to satisfying this standard.
Now consider the Harvard sexual misconduct policies. As the Harvard law professor, former federal judge, and legendary feminist litigator Nancy Gertner points out, the fair-process problems with Harvard’s policies don’t arise so much from the adoption of the preponderance standard as from the lack of other protections for those named in a complaint. Under those policies, Gertner notes, respondents are not entitled to lawyers or “meaningful sharing of information” regarding the basis for the claims against them. Respondents receive “one week to respond” to written accusations, and they are not entitled to a hearing. Instead, facts are found through interviews conducted by an “investigative team” appointed by the university’s Title IX office, with any appeal to the Title IX officer who has supervised the team throughout. And neither respondents nor their counsel are entitled to cross-examine witnesses to test their stories.
Harvard adopted this new policy in response to an investigation by the Department of Education, though the university did not specifically ask the department to sign off on that policy. And as Gertner herself acknowledges, the government did not require the university to adopt such a skewed process. In fact, the department’s 2014 pronouncement specifically requires a “balanced and fair process that provides the same opportunities to both parties.”
To be sure, the government has made clear that schools must adopt procedures to address sexual misconduct on campus, rather than leaving the issue to the criminal justice system. But this is not objectionable. Universities routinely employ their disciplinary procedures to address student-on-student misconduct that also might violate criminal laws. That is because the schools recognize that they have an obligation to protect students against threats to their safety and well-being on campus, and that this obligation arises independently of whether the state believes it appropriate to deploy the apparatus of criminal punishment in a particular case. If a university is willing to discipline a student for theft, vandalism, or non-sexual assault without leaving those matters to the criminal justice system, then the school’s failure to treat sexual assaults the same way would seem to represent exactly the sort of discrimination that Title IX seeks to prevent. Indeed, it was precisely the widespread refusal of universities to take issues of sexual violence seriously that prompted the Department of Education to step up its efforts to enforce that statute.
The OCR’s requirement of a preponderance-of-the-evidence standard, too, reflects a reasonable accommodation of the various interests present in college sexual violence matters. Where criminal punishment is at stake, it is entirely appropriate to require allegations to be proven beyond a reasonable doubt. The state ought not to be able to deprive a person of his or her liberty, and brand that person a criminal, on the basis of a lesser degree of certainty. But criminal punishment is not at stake in university disciplinary proceedings. What is at stake is whether a student presents enough of a threat to other students to warrant the school taking steps to protect those other students. At the extreme, those steps might include expulsion. But it is far more typical, even in sexual misconduct cases, for schools to adopt more tailored protective steps, whether suspensions, reprimands, counseling requirements, or orders requiring perpetrators to stay away from their victims. Where protection, and not criminal punishment, is at stake, we should weight the interests of those who claim that they have been subject to misconduct just as heavily as the interests of those whom they accuse of committing misconduct. And particularly where schools adopt the preponderance standard for disciplinary proceedings involving other potentially criminal conduct, as they typically do, they should do the same for disciplinary proceedings involving sexual misconduct.
To be sure, there are difficult questions here. University disciplinary proceedings that charge students with misconduct that is also criminal must be carefully coordinated and sequenced with criminal investigations and prosecutions, lest the accused students give up (whether inadvertently or under pressure) key protections such as the privilege against self-incrimination. But thoughtful universities and law enforcement officials can address those issues without leaving campus sexual violence to the criminal justice system—which is appropriately deliberative and protective of the accused, but which as a result cannot alone serve the non-criminal function of protecting students.
Nor is the OCR’s resolution of the standard-of-proof issue free from doubt. A charge of sexual violence is an incredibly serious matter, even if criminal punishment is not at stake. To many, it appears different in kind from a charge of assault, vandalism, or theft. Add the fact that a significant subset of cases are (literally) he-said/she-said affairs, and many observers believe that a university should not be entitled to discipline a student for a sexual violence charge without a greater degree of certainty than a mere preponderance of the evidence. But to elevate the standard of proof is to give more weight to the interests of accused students to be free from erroneous discipline than to the interests of victims against erroneous failures to discipline students who actually harmed them. The preponderance standard gives equal weight to the important interests on both sides. And the procedures in disciplinary proceedings, as the OCR guidance says, should provide the accused student a fair opportunity to develop evidence and ensure that the accuser’s story is well tested. Absent reason to believe that allegations of sexual assault are especially likely to be false—and, certain examples to the contrary, the evidence is that such allegations are generally true—the OCR’s endorsement of the preponderance test represents at least a reasonable resolution of an arguable issue.
The horror stories, then, are not the result of the Department of Education pronouncements themselves but of universities going well beyond anything that the department has purported to require. What has led universities to react in such an extreme manner? A principal explanation would point to the bureaucracy that, at most universities, is assigned the task of implementing the department’s pronouncements. A 2014 analysis found that the number of university administrators had “more than doubled in the last 25 years, vastly outpacing the growth in the number of students or faculty.” Many of these administrators work in the field of “compliance.” In other words, their job is to ensure that the university complies with the regulatory mandates that apply to it. This compliance function can be salutary, but it comes at a cost. Because compliance administrators do not come from the faculty, they are unlikely to fully appreciate the academic values of independent inquiry that challenges—often aggressively—the certitudes of students and others in the academic community. When that lack of grounding in academic values is combined with the tunnel vision that arises whenever an office is designed with the sole aim of maximizing compliance with a particular mandate, it is a prescription for a bureaucracy that prefers to sanitize the classroom, and override fair-process interests, in order to avoid any risk of being found to have violated the applicable regulations. A very similar dynamic has led institutional review boards to metastasize at American universities, as Zachary Schrag recently pointed out in these pages (“You Can’t Ask That,” September/October 2014).
The Department of Education should have seen this coming. A major, highly publicized government enforcement initiative on the high-profile topic of campus sexual violence was bound to empower those university bureaucrats who would pursue maximal risk aversion. Although the department was right to adopt a forceful response to the festering problem of sexual assault on campus, officials apparently did not anticipate—and certainly did not take sufficient steps to forestall—the overzealous response by some administrators. That failure has tarnished the legitimacy and limited the effectiveness of what is otherwise a very worthy initiative.
What might the Department of Education have done differently? And how might it fix the problem now? The department has focused its public pronouncements on emphasizing the seriousness of the sexual violence and harassment problem and on underscoring universities’ obligations to attack that problem. This is understandable, because the safety and educational opportunities of many women are at stake, and too many schools ignored the problem and disregarded their obligations for many years. But although the department has spelled out what schools must do in great detail, it has not been as clear about the limits of their obligations.
Alas, this was entirely predictable given the OCR’s structure and functions—and the fraught context of campus sexual assault. Since the 1960s, when it was part of the Department of Health, Education and Welfare, the OCR has largely served as a complaint-processing organization. With the equivalent of between 500 and 600 full-time staff, the office reviews thousands of complaints each year (just under 10,000 in the 2014 fiscal year). These complaints allege that recipients of federal educational funds have violated any one of several federal laws prohibiting discrimination—not just Title IX, but also Title VI of the Civil Rights Act of 1964 (which prohibits race discrimination), as well as prohibitions on age and disability discrimination. Just to investigate and adjudicate each of these complaints takes substantial staff time. Throughout its history, the office has fought major backlogs. In the 1970s and ’80s, the OCR labored under strict court-imposed deadlines for taking action on complaints. By the time the D.C. Circuit (in an opinion by then Judge Ruth Bader Ginsburg) finally lifted the court orders in 1990, the agency’s orientation was firmly set. Although the OCR has a vital role in setting policy, its principal interactions with the schools it regulates occur through individualized, adversarial processes in which the agency investigates a complaint and attempts to work out a resolution, all with the threat of withholding federal funds dangling over the school’s head.
This orientation left the OCR poorly positioned to respond to the pressure it faced, early in the Obama administration, to address the problem of sexual harassment and violence on campus. The pressure was more than amply justified. Discriminatory harassment and violence appears to have been widespread. Yet colleges remained complacent, and the OCR focused its Title IX energies in the Bush administration on other issues (notably loosening restrictions on single-sex education and requirements for gender equity in athletics). The assistant secretary tasked with responding to those pressures in 2011, Russlynn Ali, was an able veteran of civil rights and education reform groups, but she had no experience working in higher education administration. Nor did her successor Catherine Lhamon, an incredibly talented civil rights attorney who issued the OCR’s updated guidance document in 2014. In formulating and rolling out the agency’s new policies on sexual harassment, Ali and Lhamon needed to rely on career staff with deep knowledge of and relationships in college and university faculties and administration—knowledge and relationships that could help them understand the importance of drawing clear lines stating what universities need not do as well as what they must do. But after so many years with an orientation toward resolution of individual complaints, OCR staff had not developed the capacity to provide that kind of advice. And when the agency, pressured to act, issued its guidelines in 2011 and 2014, university faculty and leaders felt like the requirements came out of nowhere and did not reflect an appreciation of important academic values. By failing to develop and exploit close information-sharing relationships, the OCR has put the legitimacy of its important efforts to fight sexual violence on campus at risk.
How might the OCR have done better? An example of the path not taken can be found in another government civil rights enforcement agency—the Disability Rights Section (DRS) of the Justice Department’s Civil Rights Division. As a young career Department of Justice lawyer in the early years of the Americans with Disabilities Act, I had a chance to see how the staff of the DRS unveiled and began enforcing the ADA’s obligations on businesses, government agencies, and schools. (Later, in the first term of the Obama administration, I had the honor of supervising the DRS as a political appointee at the Justice Department.)
Many of the DRS’s staff—including its longtime career chief, John Wodatch—had experience working at the OCR. But they never allowed the work of the DRS to be dominated by individual, adversarial complaint processing. Rather, from the beginning the DRS focused on policy, training, and technical assistance to translate the broad and revolutionary promises of the ADA into digestible and achievable directives for implementation. Through extensive letter writing, presentations to industry groups, and a continuously updated technical assistance manual, the DRS let regulated entities know both what the new statute required and, crucially, what it did not require. And the communication was not one way. Rather, the DRS’s directives were informed by extensive input from disability rights advocates and the regulated entities.
Led by Wodatch, who had worked in the executive branch since the Nixon administration, and whose frequent off-the-record conversations with his extensive Rolodex of contacts in Washington and around the country was legendary, if (plausibly) denied—the DRS made sure to understand the legitimate interests of those it was regulating and to accommodate those interests when possible. Sometimes that meant requiring less, or going slower, than advocates urged. And that approach hardly avoided all fights over the ADA’s requirements. But Wodatch and his staff had built up so much credibility on all sides of these fights that most knowledgeable observers, most of the time, regarded their compromises as Solomonic. The DRS’s approach led to widespread voluntary compliance, particularly among large businesses and organizations. And when some businesses inevitably resisted the DRS’s directives, those businesses became isolated and highly vulnerable to litigation brought by the Department of Justice or private parties. The results, twenty-five years after the ADA’s enactment, have in fact been revolutionary.
The OCR’s history and orientation stacked the deck against its following the DRS’s successful path. How might the OCR fix the problem now? The agency needs to make clear, in its guidance documents, in the public statements of its leaders, and in ongoing technical assistance conversations with school administrators, that merely making students uncomfortable does not constitute unlawful harassment, that complaints such as the one filed against Laura Kipnis can be resolved quickly and without an “inquisition,” and that the “balanced and fair process” required by its sexual violence guidance demands that the respondent receive procedural protections as well as the complainant. Doing so will empower those university constituencies that fight risk aversion and defend the academic values of robust, often uncomfortable inquiry. And it will help to protect the viability and legitimacy of the important effort to promote safety and equal opportunity on campus.