To the Editor:
You are correct that the Obama administration’s April 4, 2011 “Dear Colleague” letter changed how colleges deal with allegations of sexual harassment and assault (“How a 20-Page Letter Changed the Way Higher Education Handles Sexual Assault,” February 8). That letter from the Education Department’s Office for Civil Rights told colleges they “have an obligation” to investigate even when an incident “occurred off school grounds.” By contrast, under the Bush administration, the Office for Civil Rights took the opposite position, telling Oklahoma State University in 2004 that “A University does not have a duty under Title IX to address an incident of alleged harassment where the incident occurs off-campus and does not involve a program or activity of the recipient.” The Bush administration’s position is consistent with court rulings like Lam v. University of Missouri (1997) and Roe v. St. Louis University (2014).
The Obama administration’s 2011 letter also told colleges not to use the clear-and-convincing standard, even though this was the standard long used by Harvard Law School, Cornell, and most Ivy League colleges. The Chronicle cites pre-2011 letters in which regional officials in two of OCR’s many offices took this position. But in other parts of the country, colleges had long used the clear-and-convincing evidence standard without any objection from OCR, in compliance reviews and investigations.