Patricia H. Davis 2017-08-23 15:49:30
TITLE IX CASES Preponderance and the university’s role. Legal Rights for College Student Victims of Rape and Sexual Harassment Some of the most vocal critics of Title IX believe it was created to persecute male college students. In fact, Title IX has been protecting educational communities from gender discrimination since it was signed into law in 1972. 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.”1 The U.S. Supreme Court first found a private right of action under Title IX in 1979, for a woman who was denied admission to the University of Chicago Pritzker School of Medicine because of her gender.2 Since then, the court has expanded rights to include protections from sexual harassment by teachers and third parties (including fellow students) and protection from retaliation for making Title IX complaints.3 Lower courts have also begun to elaborate on victims’ rights under Title IX to include so-called “before” claims—applicable where colleges and universities have official policies that themselves make students vulnerable to sexual harassment and assault. In an oft-cited 2007 case, Simpson v. University of Colorado at Boulder, the Eleventh Circuit allowed the claims of a young woman who was gang-raped by university and high school football players to survive summary judgment, where the university’s official Ambassador program was found to use unknowing female students as sexual bait for football recruits.4 A Texas district court hearing one of the Baylor University Title IX cases utilized a Simpson analysis, allowing multiple plaintiffs to survive Baylor’s motion to dismiss on both the traditional theory— that Baylor had knowledge of and was deliberately indifferent to the complaints of sexual assault—and under the Simpson “before” doctrine, under which they allege that Baylor’s discriminatory practices in handling sexual assault were so flawed that they created a heightened risk for students to be sexually assaulted.5 Rape Remains a Significant Public Health Crisis on College Campuses Despite the increasing scope of the legal protections afforded by courts to victims of sexual assault, tens of thousands of students continue to be raped or otherwise sexually assaulted each year on our nation’s college campuses. In a 2015 nationwide study, including 27 colleges and universities, the American Association of Universities found that 23 percent of female undergraduate college women and 5.4 percent of undergraduate men are victims of sexual assault or misconduct due to physical force, threats of force, or incapacitation during the time that they are enrolled at college; rates of sexual assault and harassment are even higher among LGBTQ students.6 According to the latest data from the University of Texas, 18 percent of undergraduate women and 7 percent of undergraduate men in the university system have experienced rape or attempted rape during their time on campus.7 Rape is an invasion. It is one of the few crimes that stigmatizes the victim. And victims endure lasting physical, emotional, and spiritual consequences. Most law enforcement agencies no longer talk about “date rape,” understanding that rape by acquaintances is just as devastating as “stranger rape.” Perhaps the hardest fact to acknowledge about rape on campus is that it is committed daily and hourly against vulnerable students not by strangers but by their male student colleagues. The majority of victims of sexual assault do not report the assault8—often, correctly believing that they will be shamed and subjected to administrative and legal procedures hostile to them and their claims. Male victims are often especially reluctant to report. Preponderance of the Evidence Title IX has been used by the Office for Civil Rights, or OCR, to fight sexual assault in federally funded schools since 2001. In 2011, the OCR issued its “Dear Colleague Letter,” or DCL, on sexual assault, renewing the department’s determination to enforce anti-sexual assault and harassment mandates under Title IX.9 The DCL mandates are far from draconian, and actually give colleges considerable autonomy in dealing with sexual assault investigations, hearings, and prevention. One of the DCL’s most controversial mandates is the requirement that schools employ the “preponderance” (more likely than not) standard of evidence in sexual assault disciplinary proceedings. From the moment the DCL was issued, there has been a sustained outcry against this standard. Some critics argue that accused students should be afforded higher protections for sexual assault disciplinary allegations than for other alleged violations— including those that might also make them liable for separate criminal charges (e.g., vandalism, illegal drug use, theft, and arson). In fact, the OCR has been requiring colleges to use the preponderance standard for sexual assault charges for many years, and most colleges had used the preponderance standard in all disciplinary hearings, including sexual assault, before the DCL was issued. This is the standard used in most civil litigation, including for complaints of assault and sexual assault (intentional torts). The preponderance critics’ efforts are not going unchallenged. Reasoned and urgent responses have been forthcoming from law enforcement, lawyers’ groups, college liability insurance providers, and other stakeholders in the fight against campus sexual assault. In July, 20 state attorneys general sent Education Secretary Betsy DeVos a joint letter supporting the preponderance standard and advocating for continuing tough Title IX enforcement.10 In March 2017, the American College of Trial Lawyers issued a white paper strongly supporting the standard. 11 United Educators Insurance and the National Association of College and University Attorneys have historically reminded their members that colleges should employ the preponderance standard in student discipline procedures as a best practice for risk management: “As a legal matter, student discipline codes are not criminal law codes, and criminal law concepts do not apply to them.”12 Are Colleges Able to Provide Due Process to Accused Students? Preponderance critics often argue that colleges are “kangaroo courts” not equipped to be “judge and jury” in sexual assault cases, and some insist that colleges should be forced to turn all sexual assault investigations and prosecutions over to the state criminal justice system. While it is undoubtedly true that colleges still make mistakes in their attempts to prosecute accused students, they have pressing and daily legal responsibilities to protect their own communities from sexual assaults in real time. Colleges cannot afford to wait for the wheels of the criminal justice system to grind through the full process to resolve sexual assault complaints while student perpetrators remain free and unpunished on campus. In July, the Fifth Circuit affirmed the right and responsibility of colleges to adjudicate campus sexual assault complaints in Plummer v. Univ. of Houston, a case involving two students (a male and female) accused of violating university sexual assault policies.13 Both students were expelled after disciplinary hearings they claimed were unfair. Summary judgment was upheld for the university, not because the disciplinary process had been perfect, but rather because the students had been given adequate opportunities to present their cases and “to challenge the university’s allegations, evidence and findings.” The Plummer opinion warns that “[c]ourts should refrain from second-guessing the disciplinary decisions made by school administrators.” It also confirms that determining whether due process has been achieved in disciplinary proceedings is a context- and fact-sensitive calculation that includes the interests of schools in maintaining safe learning environments while at the same time shepherding administrative resources. Conclusion Sexual assault is a major and frustratingly unremitting public health crisis on college campuses. Colleges admittedly need to step up their games in Title IX enforcement for the sake of both victims and accused students. Nevertheless, day-to-day and ongoing campus safety considerations require that colleges be given freedom and space to engage in investigations and to hold disciplinary hearings that do not reach the exacting standards of criminal proceedings. Taking away the preponderance standard and/or taking away Title IX disciplinary responsibilities from colleges would be a victory for sexual predators and a defeat for healthy campus environments. Notes 1) 20 U.S.C. § 1681(a) (Title IX of the Educational Amendments of 1972). 2) Cannon v. Univ. of Chicago, 441 U.S. 677 (1979). 3) Franklin v. Gwinnet County Pub Sch., 503 U.S. 60 (1992); Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274 (1998); Jackson v. Birmingham Bd. of Ed., 544 U.S. 167 (2005); Davis v. Monroe Cty. Bd. of Ed., 526 U.S. 629, 648 (1999). 4) Simpson v. University of Colo. Boulder, 500 F. 3d 1170 (10th Cir. 2007). 5) Doe v. Baylor Univ., 2017 LEXIS 96923. 6) AAU, Climate Survey on Sexual Assault and Sexual Misconduct, p. 13 (2015). 7) University of Texas, CLASE Survey Results, pp. 50-51 (March, 2017). 8) The Department of Justice estimates that rape and sexual assault victimization was more likely to go unreported than any other crime. (BJS, Rape and Sexual Assault Victimization Among College-Age Females, 1995-2013, pp. 9). The AAU study found that 36 percent of victims of forced penetration did not report the incident out of embarrassment, shame, and fear that it would be too emotionally difficult; 29 percent did not report because they did not think anything would be done about it. (AAU Climate Survey, pp. 36-37). 9) U.S. Department of Education, Office for Civil Rights, Dear Colleague Letter: Sexual Violence Background, Summary, and Fast Facts (April 4, 2011). 10) Letter to the Honorable Elisabeth DeVos signed by 20 State Attorney Generals, July 19, 2017, https://www.documentcloud.org/documents/3897422-Title-IX-Letter-to-Secretary-DeVos.html. 11) American College of Trial Lawyers, White Paper on Campus Sexual Assault Investigations, March 2017. 12) United Educators & NACUA, Reviewing Your Student Discipline Policy, http://www.edstoner.com/uploads/UE.pdf 13) Plummer v. Univ. of Houston, 860 F.3d 767, 774 (5th Cir. 2017). PATRICIA H. DAVIS is a civil rights lawyer specializing in Title IX matters with the Dallas firm of Farrow-Gillespie & Heath.
Published by State Bar of Texas. View All Articles.
This page can be found at http://mydigimag.rrd.com/article/Opinion/2862010/433318/article.html.