To safeguard 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))
In its Davis decision, the Supreme Court specifically rejected the argument that complainants have a right to demand particular disciplinary sanctions, much less automatically require a school to “suspend or expel” someone accused of sexual harassment, saying that there is no violation of Title IX unless school officials behave in a way that is “clearly unreasonable”:
"We stress that our conclusion here–that recipients may be liable for their deliberate indifference to known acts of peer sexual harassment–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.”
The Supreme Court further emphasized that to successfully sue a school district for damages, a complainant alleging sexual harassment must 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 is unable to conclusively determine that harassment has occurred, it is not liable even where that conclusion was “flawed,” and led to future harassment. (See Doe v. Dallas Independent School District, 220 F.3d 380 (5th Cir. 2000)).
The Davis decision also said that a school does not have to discipline people in ways that would give rise to “statutory or constitutional” claims against it: “it would be entirely reasonable for a school to refrain from a form of disciplinary action that would expose it to constitutional or statutory claims.”
For a school to discipline people based on a mere “preponderance of the evidence” standard, as the Education Department now demands, might well violate state law if it conflicted with collective bargaining agreements or other provisions mandating a “clear-and-convincing evidence” standard.
Even in the workplace, where employers are stringently liable for mere “negligence” — not just for “deliberate indifference” — they are not automatically liable for giving the accused a clear presumption of innocence, as federal appeals courts have made clear. The Third Circuit Court of Appeals in Philadelphia held that an employer was not liable for sexual harassment, where it refused to discipline the accused because 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 (3d Cir. 1997)). That employer escaped liability despite requiring more than a close case for discipline, as a preponderance of evidence would mandate, since its refusal to impose discipline in the face of uncertainty was reasonable as a matter of law.
Similarly, the Ninth Circuit Court of Appeals reversed a jury verdict that awarded a worker $85,000 against the Postal Service for sexual harassment, even though harassment by Postal employees did occur, since the Postal Service had, after investigating the worker's sexual harassment complaint, reasonably, but erroneously, failed to credit plaintiff's allegations. As the court explained, "a good faith investigation of alleged harassment may satisfy the 'prompt and appropriate response' standard, even if the investigation turns up no evidence of harassment. . .[and] a jury later concludes that in fact harassment occurred." See Swenson v. Potter, 271 F.3d 1184, 1196 (9th Cir. 2001).
Another federal appeals court, the Fourth Circuit, has also rejected the idea that discipline is required if it is unclear whether the accused is guilty. It emphasized, “the legal standard of ‘prompt and adequate remedial action’ in no way requires an employer to dispense with fair procedures for those accused or to discharge every alleged harasser. . . ‘[A]n employer, in order to avoid liability for the discriminatory conduct of an employee, does not have to necessarily discipline or terminate the offending employee as long as the employer takes corrective action reasonably likely to prevent the offending conduct from reoccurring.’. . . And 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. 1997)).
Similarly, the Tenth Circuit Court of Appeals rejected an attempt to hold an employer (Wal-Mart) liable for harassment because it failed to discipline a harasser where it was genuinely unclear at the time it refused to discipline him 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, 678 (10th Cir. 1998)).
Thus, even in the workplace, there is no rule that the “preponderance of the evidence” standard (discipline upon a mere 50.0001% chance of guilt) is the one that always has to be applied to avoid harassment liability; indeed, it may be unreasonable to discipline a someone with no previous history of harassment where it is unclear whether he is in fact guilty.
The Education Department’s Office for Civil Rights (OCR) has elsewhere sought to evade the requirements of the Supreme Court’s Davis decision by suggesting that its “deliberate indifference” standard for liability applies only to lawsuits against schools, not OCR investigations. But even if true, that is no help to OCR.
Even if the Davis standard for collecting damages in a lawsuit is somehow different than the standard for whether a violation of Title IX is established (for administrative purposes), the Education Department would still have to show a statutory violation happened in the first place, and recognizing a presumption of innocence is not a violation, as workplace cases reveal.
In the workplace, deliberate indifference need not be shown for a violation, and the question of damages liability and the existence of a violation are one and the same. That’s because the workplace antidiscrimination statute, Title VII, automatically imposes damages liability for all violations except for disparate-impact claims. Nevertheless, the courts have held that the mere existence of harassment in the workplace does not lead to liability on the part of the institution in which the harassment took place: for a violation to have even occurred in the first place, the institution must have failed to take reasonable steps in response to the harassment, and giving the accused the benefit of the doubt is not unreasonable and thus is not a violation to begin with. 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)).
OCR’s own 1997 interpretive rules regarding sexual harassment in the Federal Register explicitly borrowed from Title VII workplace precedents in laying down OCR’s test for whether a Title IX violation has occurred to begin with, thus incorporating those workplace limits on what is a violation of laws against sexual harassment. (See, e.g., 62 FR 12034 (1997)).
Even if OCR’s position were not at odds with Supreme Court precedent (and thus void), which it certainly is, OCR’s new mandate is procedurally improper and not a valid administrative rule.
If OCR wishes to impose a new rule overriding college disciplinary codes and collective bargaining agreements as to the burden of proof (as it is effectively doing), it has to do so in a formal rule, after notice and comment, and explain how to justify its departure from federal appellate court rulings about what a violation of the antidiscrimination laws is, and how to reconcile its new mandate with the Davis decision. Its unexplained departure from its past rules mimicking the standard workplace test for liability renders this new legal mandate invalid under the D.C. Circuit’s Paralyzed Veterans rule, which says that longstanding agency rules cannot be changed without notice-and-comment, even when the agency is merely amending an interpretive rule, unless that rule is being amended to comply with a superseding court decision. See Paralyzed Veterans of Am. v. D.C. Arena L.P., 117 F.3d 579, 586 (D.C. Cir. 1997). (The only superseding court decisions since OCR issued its 1997 harassment guidance have been those that narrowed the definition of harassment: like Davis, which made clear that harassment must be both severe and pervasive, not severe “or” pervasive as OCR claims; and the 1998 Gebser decision, which dismissed a lawsuit for failure to show both a school's knowledge of harassment and its “deliberate indifference” to it).
Remember, it’s not the harassing student or professor who is being sued under Title IX, since Title IX liability is on the part of the school, not the harassing student or professor. (See, e.g., Smith v. Metropolitan Sch. Dist., 128 F.3d 1014, 1018-19 (7th Cir.1997). So 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.
Indeed, historically, most colleges and universities 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)). There was generally no exception for people accused of sexual harassment, who thus received the same due-process protections as everyone else.
(Disclosure: I was once a staff attorney for the Education Department’s Office for Civil Rights, and handled cases involving Title IX and other civil rights statutes).