Title IX

Why Cross-Examination Rights Matter in Campus Sexual Harassment Cases under Title IX

by Hans Bader on June 7, 2011 · 3 comments

in Employment, Legal, Nanny State, Personal Liberty

As part of its broader attack on safeguards against false accusations, the federal Education Department is urging colleges to strip students and faculty of the right to cross-examine their accusers in disciplinary proceedings over alleged sexual harassment. In an April 4 letter from Assistant Secretary for Civil Rights Russlynn Ali, the Education Department said that it “strongly discourages schools from allowing the parties personally to question or cross-examine each other during the hearing.”

This is perverse, since the subjective nature of the legal definition of harassment means that there is no category of cases in which cross-examination is more useful or essential to ensure due process. To legally qualify as sexual harassment under Title IX, or racial harassment under Title VI, speech must be severe and pervasive enough to create a hostile learning environment for the listener, and interfere with the listener’s education, both in subjective and objective terms, according to court rulings like the Supreme Court’s 1999 Davis decision. Transitory offense is not enough. If the accuser admits on questioning that she did not really view the offensive speech as being a “big deal,” or was not shocked or surprised by it, that probably rules out the existence of a subjectively hostile environment. Indeed, a federal appeals court dismissed a racial harassment claim for just that reason in Newman v. Federal Express Corp., 266 F.3d 401 (6th Cir. 2001).

But a wrongly-accused person can’t establish that lack of a subjectively-hostile atmosphere without questioning the accuser, and may not be able to show that the accuser wasn’t greatly impacted by the speech without cross-examining the accuser about its alleged effect on her and her studies, such as whether she continued to enjoy her college experience after overhearing the allegedly “harassing” remarks.

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Obama Administration Undermines Safeguards for Teachers and Students

by Hans Bader on May 18, 2011

in Legal, Nanny State, Personal Liberty, Politics as Usual, Zeitgeist

In the Washington Examiner, I explain how the Education Department is both undermining protections for falsely-accused students and teachers, and reducing the accuracy of campus decisions in sexual harassment cases. This is occurring as a result of demands contained in an April 4 “Dear Colleague” letter sent by a political appointee (Assistant Secretary for Civil Rights Russlynn Ali) to the nation’s school officials, who are now complying with those demands even though they lack a sound legal basis. In the Washington Post, attorney Wendy Kaminer wrote that “the Education Department’s new policies increase the risk that students wrongly accused of misconduct will be found guilty, suspended or expelled, and tarred as stalkers or rapists.”

The Foundation for Individual Rights in Education took issue with the Education Department’s demands in this letter. The Daily Caller covers the controversy here.

George Mason University Law Professor David Bernstein comments here, observing that “the Department of Education has no business dictating” a lower evidentiary “standard to universities nationwide.” FIRE’s Samantha Harris and Erica Goldberg also comment on the controversy.

Education Department Undermines Due Process and Accuracy in Campus Sexual Harassment Cases

by Hans Bader on April 14, 2011

in Labor, Legal, Nanny State, Personal Liberty, Regulation

On April 4, the Education Department’s Office for Civil Rights (OCR) sent the nation’s school officials a letter urging them to water down due process and other protections for students and staff accused of sexual harassment. It encouraged colleges and schools to cut back on procedures that help debunk unfounded allegations, such as cross-examination, and sought to place limits on students’ ability to appeal their convictions. The Education Department’s letter, timed to coincide with a PR campaign by Joe Biden, was also criticized by civil libertarians, like former ACLU board member Wendy Kaminer and the Foundation for Individual Rights in Education, for defining sexual harassment so broadly as to include constitutionally protected speech.

As Wendy Kaminer noted, the Education Department is attempting to deprive accused students of the right to cross-examine their accusers: “students accused of harassment should not be allowed to confront (or directly question) their accusers, according to OCR, because cross-examination of a complainant ‘may be traumatic or intimidating.’” As OCR puts it, “OCR strongly discourages schools from allowing the parties personally to question or cross-examine each other during the hearing.” This is perverse, since “a famous legal authority once described cross-examination as the most powerful engine for the discovery of truth ever devised by man.”

(While there is no independent constitutional right to cross-examine in campus disciplinary proceedings, the right is sometimes protected by state education codes, collective bargaining agreements, or other contracts or regulations. Moreover, in a few campus disciplinary cases, such as Donohue v. Baker (1997), judges have ruled that cross-examination was constitutionally required on due-process grounds to test the credibility of the accuser.)

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Education Department Changes Burden of Proof in Sexual Harassment Cases Under Title IX

by Hans Bader on April 11, 2011

in Labor, Legal, Personal Liberty, Regulation

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.

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Education Department “Dear Colleague” Letter Shreds Presumption of Innocence in Harassment Cases, Ignoring Supreme Court

by Hans Bader on April 8, 2011

in Legal, Personal Liberty, Regulation

To promote due process, some college disciplinary systems recognize a strong presumption of innocence, requiring clear-and-convincing evidence of guilt for discipline. That practice is now called into question by a recent Education Department letter that ignores a Supreme Court decision and federal appeals court rulings to the contrary.

In an April 4 “Dear Colleague” letter, the Education Department’s Office for Civil Rights (OCR) claims 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 50.001% chance that the accused is guilty, the accused must be disciplined.

To satisfy this OCR requirement, schools that have long used a clear-and-convincing standard in disciplinary cases would have to suddenly create a special exception for sexual harassment and discrimination cases, giving people accused of such offenses less due process than they would otherwise receive. This would be a major departure from existing practice for schools, like Harvard Law School. Harvard’s “Policy and Guidelines Related to Sexual Harassment,” adopted by faculty vote 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 mandating a clear-and-convincing standard.

The Education Department’s claim that complainants have a right to demand discipline whenever the evidence ever-so-slightly favors them is at odds with the Supreme Court’s Davis decision, which spelled out when  sexual harassment in the schools violates the federal civil rights statutes that OCR is charged with enforcing. (See Davis v. Monroe County Board of Education, 526 U.S. 629 (1999).)

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Obama’s State of the Union: A Blueprint for Crony Capitalism and Costly Educational Failures

by Hans Bader on January 26, 2011

in Economy, Employment, Energy, Environment, Politics as Usual, Stimulus to Nowhere

In his State of the Union address, President Obama called for even more spending on his cronies — what he euphemistically referred to as “investments” in “clean energy technology.” Such spending benefits companies that donate millions to liberal politicians, like GE,  which recently spent  $65.7 million on lobbying to extract special favors from the government.

As the Washington Post notes, GE received massive taxpayer bailouts on special, preferential terms not available to other companies:

General Electric, the world’s largest industrial company, has quietly become the biggest beneficiary of one of the government’s key rescue programs for banks. At the same time, GE has avoided many of the restrictions facing other financial giants getting help from the government. The company did not initially qualify for the program.  .  .But regulators soon loosened the eligibility requirements, in part because of behind-the-scenes appeals from GE.

GE’s CEO, Jeffrey Immelt, is the “Chairman of the President’s Council on Jobs and Competitiveness.”

The “clean energy” spending Obama wants includes “initiatives aimed at building the renewable-energy sector — which received billions of dollars in stimulus funding.”

This is a bad sign for American workers, because such green jobs programs have wiped out thousands of American jobs in the past.  The $800 billion stimulus package used “green-jobs” subsidies to send American jobs overseas.  79 percent of those subsidies went to foreign firms, such as an Australian firm that imported Japanese wind turbines, effectively outsourcing American jobs.  (The stimulus package also wiped out jobs in America’s export sector.)  Moreover, some “green jobs” funding actually damages the environment, like ethanol subsidies:  ethanol mandates actually harm the environment, yet the Obama administration apparently considers them to be a “green jobs” program.

Echoing earlier reports that he would advocate “new government spending” on education, Obama attacked the idea of scaling back massive increases in education spending. He called cutting education spending “like lightening an overloaded airplane by removing its engine.” Lost in his hyperbole was the fact that America already spends much more per capita on education than most other wealthy industrialized countries, with worse results.  As spending has exploded, college students are spending much less time studying and reading than they used to.

Dumping more money on the educational system is unlikely to spur economic growth, since so many college students learn little in college, are not interested in learning, and only go to college in order to get paper credentials rather than an education. Obama wants all Americans to attend at least one year of college, saying in his address that “higher education must be within reach of every American.”

Those paper credentials are increasingly useless to many who obtain them.  Most people who went to college because of rising college-attendance rates in recent years wound up in unskilled jobs (including 5,057 janitors who have Ph.D’s or other advanced degrees), while tuition skyrockets. (100 colleges charge at least $50,000 a year, compared to five in 2008-09.)  Bush increased federal education spending 58 percent faster than inflation, while Obama seeks to double it.

Colleges are so awash in money that many elite colleges are using it to rapidly expand educational bureaucracies.  For example, Wake Forest University increased spending on administrators by 600 percent.

Unlike other countries, which focus on educating engineers and other economically-productive occupations, America focuses on superficial, ideologically-fashionable liberal-arts majors.  The Obama administration seems more concerned about the gender ratios in college science departments than the small number of Americans who go into science, and is now contemplating caps on the number of male science students under Title IX to promote what it perceives as gender equity.  Such caps would be based on the Obama administration’s faulty interpretation of Title IX.

The Liberal War on Science

by Hans Bader on April 15, 2009 · 1 comment

in Agriculture, Economy, Environment, Global Warming, International, Legal, Nano & Biotech, Personal Liberty, Politics as Usual, Precaution & Risk, Stimulus to Nowhere

Christina Hoff Sommers writes about a looming liberal war on science. Based on a campaign promise Obama made to feminist groups in October 2008, Sommers foresees the Obama Administration moving to artificially cap male enrollment in math and science classes to achieve gender proportionality — the way that Title IX currently caps male participation in intercollegiate athletics. The result could be a substantial reduction in the number of scientists graduating from America’s colleges and universities.

Critics have long argued that the Title IX cap is in tension with the Supreme Court’s warnings against proportional representation. In a ruling by Justice Sandra Day O’Connor, the Supreme Court said that it is “completely unrealistic” to argue that women and minorities should be represented in each field or activity “in lockstep proportion to their representation in the local population.” (See Richmond v. J.A. Croson Co. (1989)). In an earlier ruling, Justice O’Connor noted that it is “unrealistic to assume that unlawful discrimination is the sole cause of people failing to gravitate to jobs and employers in accord with the laws of chance.” (See Watson v. Fort Worth Bank & Trust Co. (1988)).

But the Title IX athletics regulation mandates proportional representation. It contains three alternatives for compliance, but two of them are illusory in the long run. The first way (and only permanent way) to comply is to adopt a quota that artificially caps male participation. The second and third ways, which are only short-term fixes, involve continuous expansion of participation by, or satisfaction of all desire to compete by, the “underrepresented” sex. In a world of finite resources, these latter two ways can only work for a short period of time. I used to work at the agency, the Office for Civil Rights, that administers this regulation, and I think that it would be a mistake to apply standards designed for allocating resources among all-male and all-female sports teams to the very different context of math and science classes, which are coed.

But this is not an Administration that is very good with math and numbers. Obama claimed his $800 billion stimulus package was needed to avert “irreversible decline.” But the Congressional Budget Office says it will actually cut the size of the economy in the long run. His budgets don’t add up, either, piling up $9.3 trillion in red ink, and breaking his promises to enact a “net spending cut” and not raise taxes on people making less than $250,000 a year.

Some liberal publications are suspicious of scientific advances. The agronomist Norman Borlaug, who pioneered the Green Revolution, saved perhaps a billion lives in the Third World by developing high-yield, disease-resistant crops through biotechnology. For this, he received the Nobel Peace Prize, the Presidential Medal of Freedom, and the Congressional Medal of Honor. For this, he was smeared in the liberal magazine The Nation, which has an irrational phobia of biotechnology and genetic engineering, as being “the biggest killer of all.”

Similarly, the Danish researcher Bjorn Lomborg was demonized and investigated after accurately pointing out that global warming is less of a threat to human health than AIDS and malnutrition.

Fitzgerald v. Barnstable School Committee: Justices Confused; Constitution IS Narrower Than Title IX

by Hans Bader on December 3, 2008 · 1 comment

in Legal, Personal Liberty

It’s not a good thing for a lawyer when you argue in the Supreme Court and the Justices are confused about your position. But that happened on December 2 in the case of Fitzgerald v. Barnstable School Committee, where Justices and court reporters alike were confused about what a school system’s lawyer was arguing in her oral argument. That’s too bad, because the lawyer’s argument on behalf of the school board was basically correct.

Fitzgerald is a sexual harassment case alleging “peer harassment” by a student against another student. The peer-harassment angle is important, because students aren’t state actors, so the standard of liability under the Constitution (which requires “state action”) is logically different than under Title IX (which doesn’t require any “state action”). (Making the Constitutional standard as broad as Title IX would produce all sorts of bizarre consequences by gutting the Constitution’s “state-action” doctrine)

Under Title IX, school boards are liable for “deliberate indifference” by school officials (or the school board itself) that allows harassment by one student against another to continue. (The plaintiff in Fitzgerald lost on her Title IX claim because she failed to show deliberate indifference, according to a federal appeals court).

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Fitzgerald v. Barnstable School Committee: School Board Virtually Concedes Vast New Liability

by Hans Bader on November 24, 2008 · 4 comments

in Legal, Nanny State, Personal Liberty

There’s an interesting case pending in the Supreme Court, Fitzgerald v. Barnstable School Committee, that could make Title IX irrelevant in many cases, by creating a vast new constitutional tort of sexual harassment, if the plaintiffs have their way. And amazingly enough, the Massachusetts school board that’s the defendant seems inclined to let the plaintiffs have their way. (Massachusetts’ bizarre state laws provide a possible explanation for this mystery). [UPDATE: THE SCHOOL BOARD LATER CONTESTED SUCH AN EXPANSION OF LIABILITY AT ORAL ARGUMENT on December 2].

Under Title IX, a federal law passed by Congress to expand women’s rights against sex discrimination, schools are liable if they’re “deliberately indifferent” to sex discrimination by third parties, like sexual harassment by students. But the federal Constitution is a different story. Not every case where Harry pesters Sally is a constitutional case, even if it violates Title IX.

Conduct isn’t unlawful “discrimination” for federal constitutional purposes when it’s done by a private party, even if it’s a private entity that possesses a valuable state liquor license (Moose Lodge v. Irvis) or is housed in state property like a dormitory (United States v. Morrison (2000)).

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