The Education Department is trying to change the burden of proof that many colleges and universities use in disciplinary proceedings over sexual harassment, despite court rulings undermining its position. Effectively, it is legislating through administrative fiat, in a way that is arbitrary and capricious.
Many school disciplinary systems give accused people a firm presumption of innocence, requiring clear-and-convincing evidence of guilt for formal discipline. There is generally no exception for people accused of sexual harassment, who are thus entitled to the same due-process protections as everyone else.
In an April 4 “Dear Colleague” letter reminding schools that sexual violence can constitute sexual harassment in violation of federal law, the Education Department’s Office for Civil Rights (OCR) called this well-established presumption of innocence into question. It claimed that schools cannot use a clear-and-convincing standard of proof typical in school disciplinary procedures for sexual harassment cases: “A school’s grievance procedures must use the preponderance of the evidence standard to resolve complaints of sex discrimination.” See Dear Colleague Letter: Sexual Violence Background, Summary and Fast Facts. “Preponderance of the evidence” means that if a school thinks there is as little as a 51 per chance that the accused is guilty, the accused must still be disciplined.
The Education Department’s position is based on a misunderstanding of who is subject to Title IX, the federal law banning schools from committing sex discrimination. Title IX’s requirements apply to schools, not individual students.
The Education Department’s reasoning for imposing a low “preponderance” standard on school disciplinary proceedings is that this “is the standard of proof established for violations of civil-rights laws” in lawsuits brought in federal court. Therefore, it claims, preponderance must also be “the appropriate standard for” schools to use in “investigating allegations of sexual harassment or violence.’”
It is completely true, and completely irrelevant, that the preponderance of the evidence standard applies in lawsuits in general, as well as civil-rights cases. But that burden of proof applies to whether the school violated Title IX by behaving inappropriately, not whether students or staff engaged in harassment. Students cannot violate Title IX; only schools can be sued under Title IX, not individuals. (See, e.g., Smith v. Metropolitan School District (1997).) Moreover, Students “are not agents of the school,” so their actions don’t count as the actions of the school.
The mere existence of harassment by students isn’t enough for liability. More is required. The school’s own actions in response to the harassment must be culpable. As the Education Department admitted in its 1997 “Sexual Harassment Guidance,” “Title IX does not make a school responsible for the actions of harassing students, but rather for its own discrimination in failing to remedy it once the school has notice.” (62 FR 12034 (1997)). So to violate Title IX, an institution’s own actions must be proven culpable under a “preponderance” standard — not the mere occurrence of harassment.
Since an institution itself must behave in a culpable fashion, not just the harasser, federal courts have held that there is no violation of the civil rights laws even if harassment occurs, as long as the institution investigates in good faith in response to the allegation of harassment. That’s true even if the institution ultimately refuses to discipline a harasser based on the reasonable belief that he is innocent, after applying a firm presumption of innocence. Thus, “a good faith investigation of alleged harassment may satisfy the ‘prompt and adequate’ response standard, even if the investigation turns up no evidence of harassment…. Such an employer may avoid liability even if a jury later concludes that in fact harassment occurred,” (See Harris v. L & L Wings, 132 F.3d 978, 984 (4th Cir. 1998)), and “an employer, in order to avoid liability for the discriminatory conduct of an employee, does not have to necessarily discipline or terminate the offending employee.” (See Knabe v. Boury Corp., 114 F.3d 407, 414 (3d Cir. 1997).)
For example, a court held that an employer did not have to discipline an accused employee where the evidence did not convincingly prove the existence of harassment, citing the absence of a corroborating witness. (See Knabe v. Boury Corporation, 114 F.3d 407 (3rd Cir. 1997).) That employer escaped liability despite requiring more than a close case for discipline, as a preponderance of evidence would mandate. A corroborating witness is not needed to show proof under a mere preponderance-of-the-evidence standard.
Similarly, in another case, a court rejected an attempt to hold an employer liable for harassment because it failed to discipline a harasser where it was genuinely unclear at the time whether he was guilty: “It would be unreasonable, and callous toward [the accused harasser’s] rights, for the law to require Wal-Mart to discipline [him] for events he denies, of which Wal-Mart could not find evidence.” (See Adler v. Wal-Mart, 144 F.3d 664 (10th Cir. 1998).) Thus, it can be perfectly reasonable, and thus legal, to give the accused a firm presumption of innocence, especially where the accused has no previous history of harassment.
The courts have said nothing since these decisions, or the Education Department’s 1997 harassment guidance, to suggest that schools violate Title IX just because students themselves are guilty of harassment under a mere preponderance-of-the-evidence standard.
The only relevant court decisions since then have been those that made it harder to hold schools liable: decisions like the Supreme Court’s 1998 Gebser decision, which dismissed a Title IX lawsuit for failure to show both a school’s knowledge of harassment and its “deliberate indifference” to it. OCR claims that “this deliberate indifference” requirement is irrelevant to its own interpretation of Title IX, and applies only to Title IX lawsuits against schools, in which plaintiffs must show both a Title IX violation and deliberate indifference to get damages for harassment.
But even if that were true, it wouldn’t matter. Giving someone a presumption of innocence isn’t a “violation” of the civil rights laws in the first place, as the cases discussed above illustrate. Under the Education Department’s own 1997 guidance, it’s the school, and its action in response to the harassment, that has to be culpable in order to violate the statute, not just the harasser’s own conduct. And it’s not in any way culpable for a school to give someone a presumption of innocence. No one has a “right” to discipline just because harassment happens: they only have a right to a reasonable response by their school in response to their complaint, which may or may not lead to disciplinary action depending on the evidence.
The Supreme Court also noted in its 1999 decision in Davis v. Monroe County Board of Education that Title IX doesn’t give complainants a “right” to second-guess a school’s reasonable decisions about discipline, noting that there isn’t any “Title IX right” to “particular remedial demands” or “particular disciplinary action,” just because harassment has occurred:
“We stress that our conclusion here . . . does not mean that recipients can avoid liability only by purging their schools of actionable peer harassment or that administrators must engage in particular disciplinary action. . . the dissent erroneously imagines that victims of peer harassment now have a Title IX right to make particular remedial demands . . .courts should refrain from second guessing the disciplinary decisions made by school administrators,” who “must merely respond to known peer harassment in a manner that is not clearly unreasonable.”
Many reasonable school officials with expertise in civil-rights law have long supported using a higher burden of proof than a mere preponderance of the evidence, contrary to the Education Department’s recent demand. For example, Harvard Law School’s “Policy and Guidelines Related to Sexual Harassment,” drafted by a committee that included a professor who taught gender-discrimination law, and adopted by Harvard Law’s faculty in April 1995, contains the following provision: “Burden of proof: Formal disciplinary sanctions shall be imposed only upon clear and convincing evidence.” The Education Department’s rule also conflicts with faculty collective bargaining agreements and university regulations mandating a clear-and-convincing standard. Inside Higher Education gives one apparent example, citing Ohio State University, “where the OCR began a compliance review in June after students alleged too high a burden of proof when considering whether to discipline those accused of sexual harassment, lowering that standard could require approval from the institution’s governing board.”
In addition to warning against “second-guessing” of school officials’ disciplinary decisions, the Supreme Court in Davis also reiterated that to successfully sue a school district for damages, a complainant alleging sexual harassment must also show that school officials were “deliberately indifferent to sexual harassment, of which they have actual knowledge.”
Applying this “deliberate indifference” standard, the Fifth Circuit Court of Appeals held that where a school district does not discipline a harasser because it failed to conclusively determine that harassment occurred, it was not liable even where that failure to find guilt was “flawed,” and led to future harassment. (See Doe v. Dallas Independent School District, 220 F.3d 380 (5th Cir. 2000).) Thus, it is clear that giving someone a strong presumption of innocence is not the basis for a Title IX lawsuit, regardless of what the Education Department may think.
Disclosure: I used to work as an attorney in the Education Department’s Office for Civil Rights, which sent the letter I discuss above.