Historically, most colleges used a “clear and convincing” evidence standard in student and faculty discipline cases, to safeguard due process. As Nicholas Trott Long noted in 1985 in the Journal of College and University Law, “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.” (Long, The Standard of Proof in Student Disciplinary Cases, 12 J.C. & U.L. 71 (1985)).
But in recent years, this due process safeguard has come under attack, most prominently in a legally-flawed April 4, 2011 “Dear Colleague” letter from the head of the U.S. Department of Education’s Office for Civil Rights, Russlynn Ali, who has demanded that colleges dilute the presumption of innocence in sexual harassment and assault cases by instead using a “preponderance of the evidence” standard that defines as guilty people who are as little as 50.001 percent likely to have committed the offense. I explained earlier why this demand was legally baseless, and not supported by either the Title IX statute or federal court rulings dealing with sexual harassment. (I was once a staff attorney at the Office for Civil Rights (OCR))
Now, the Senate draft bill to reauthorize the Violence Against Women Act (by Sen. Leahy’s Office) has inexplicably sought to expand the assault on due process. The draft VAWA bill would give OCR the power to set the “standard of proof” not only in harassment and rape cases, but also in other kinds of cases like “domestic violence,” “stalking,” and inappropriate behavior in dating relationships. It would do this even though OCR has jurisdiction (and expertise) only in certain kinds of discrimination cases (like sex discrimination and sexual harassment), not things like domestic violence.
It really is strange for a bill to delegate to a federal agency the power to lower due process protections and standards of proof to be used against private individuals. I have never seen any bill like this before, and it may be unprecedented. Giving OCR this power raises the danger that it could some day demand an even lower standard of proof like “reasonable grounds” or “probable cause” that would require discipline even where the accused is probably innocent as long as there is some possibility of guilt, effectively creating a presumption of guilt. It also sets a precedent for future legislation forcing institutions to lower the standard of proof in other kinds of cases that could lead to the firing of employees or expulsion of students. It is also strange to delegate to an agency like OCR that administers one statute (Title IX, which prohibits sex discrimination and harassment) the ability to dictate the standard of proof for an entirely different statute that it doesn’t even administer (VAWA, dealing with domestic violence and violence against women).
One irony in the Senate bill is that while it would give OCR the power set whatever standard it chooses, OCR’s recent “Dear Colleague” letter itself implies that OCR lacks the power to redefine the burden of proof, by claiming that its “preponderance of the evidence” standard is the one commanded by federal appellate court rulings in discrimination cases — not the product of any administrative discretion on its part.
The draft VAWA reauthorization bill states on page 69 that colleges shall “apply the standard of proof recommended by the most recent Guidance issued by the Department of Education’s Office for Civil Rights,” which issues guidance such as “Dear Colleague” letters on the federal sex discrimination law, Title IX. That is, colleges shall use for domestic violence cases under VAWA whatever standard the Office for Civil Rights decides to use for sexual harassment cases under a totally different statute, Title IX. (Such “guidance” is not a formal rule, is not accompanied by safeguards like notice-and-comment, and cannot be found in compilations of laws and regulations available to the public like the Code of Federal Regulations.)
OCR’s recent “guidance” is embarrassingly faulty, relying on inapposite cases. OCR currently claims that a “preponderance” standard must be used by colleges in student discipline for sexual harassment and rape, because the courts, in handling discrimination cases, find employers and schools liable for discrimination based on a “preponderance” standard. (For example, if the company president fires an employee, the employee only needs to prove that the firing was based on sex by a preponderance of the evidence — not beyond a reasonable doubt — to successfully sue the company for sex discrimination.)
But that “preponderance” standard is the test for when an institution is liable for its own discrimination (and discrimination by its agents), not when a student is guilty. Harassment by students (or even faculty) does not automatically constitute discrimination by the institution. As the Supreme Court’s Gebser v. Lago Vista Independent School District decision makes clear, there is no strict liability under Title IX for sexual harassment. A school is deemed guilty of discrimination under Title IX based on sexual harassment committed by a student or teacher only when it is “deliberately indifferent” to the sexual harassment, and the harassment is “severe and pervasive” enough to deprive the victimized student of access to an education. So the mere fact that an accused student is ever-so-slightly more likely than not to have engaged in harassment — that is, may have committed harassment under a “preponderance” of the evidence standard — does not show that the school was negligent, much less “deliberately indifferent,” if it failed to expel him in the face of evidence that was not clear and convincing, but rather closely-matched. That is made clear by cases like Doe v. Dallas Independent School District (2000), which rejected liability against a school district that, in good faith, failed to credit the victim’s contested allegations (even though they later turned out to be true); and cases like Knabe v. Boury Corp. (1997), which rejected liability against an employer that refused to discipline an employee for harassment, even though the court assumed he was guilty for purposes of summary judgment, because of the absence of clear, corroborating evidence of his guilt. Since “harassment” by an individual only legally becomes “discrimination” by an institution when it responds culpably and inappropriately to allegations of harassment — not just when it gives the accused a presumption of innocence — the fact that institutions are liable for discrimination under a preponderance standard does not in any way call into question the longstanding tradition of using a “clear and convincing” evidence standard in college discipline cases (a tradition reflected in collective bargaining agreements, which may be why OCR’s recent guidance has drawn fire from the American Association of University Professors).
OCR’s demand that colleges use a “preponderance” standard has been criticized by many civil libertarians and journalists, such as the Foundation for Individual Rights in Education (FIRE); former Massachusetts ACLU leader Harvey Silverglate, in The Wall Street Journal; former ACLU Board member Wendy Kaminer; conservative syndicated columnists Michael Barone and Mona Charen; libertarian columnist Jacob Sullum; and columnist Jennifer Braceras in the Boston Globe. Lawyer Robert Smith of LeClairRyan argued that OCR’s position contravened federal law. Attorney Harvey Silverglate notes that under pressure from the Education Department, colleges are already finding students guilty of sexual harassment and rape based on very meager evidence, such as when police have previously concluded that the accuser made a false claim of rape.
Other things in OCR’s April 4 “Dear Colleague” letter have also proved controversial, such as its legally-unfounded claim that accused students should not be allowed to cross-examine their accuser, and its suggestion that schools should have to investigate (and perhaps punish) students based on anonymous allegations.
Contrary to OCR’s arguments, the fact that harassment occurred by a “preponderance” of the evidence is not a reason to hold the school liable, or force it to expel a student in the face of equivocal evidence. As a federal appeals court noted, “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)). As another appeals court noted, “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.