For a new edict repeating old rules, the U.S. Education Department’s “Dear Colleague” letter on sexual violence has caused quite a stir. Two months after it went out, several colleges have already announced new policies or plans for revision.
Things happen fast when the vice president of the United States heralds guidelines at a news conference. “Rape is rape is rape,” Joseph R. Biden Jr. said at the University of New Hampshire on April 4. “The sooner universities make that clear, the sooner we’ll begin to make progress.”
The letter reiterates, sometimes verbatim, the department’s decade-old sexual-harassment guidance and echoes its statements to individual colleges over the years: They must have transparent, prompt procedures to investigate and resolve complaints of sexual misconduct, protecting the rights of alleged victims.
But never before had officials ruled so loudly on Title IX of the Education Amendments of 1972, which prohibits sex discrimination at institutions that receive federal funds. College counsels counted “shalls” and “musts” and witnessed the department’s simultaneous investigations of Harvard and Yale. Its revitalized, emboldened Office for Civil Rights was doing what it said it would: stepping up enforcement of antidiscrimination law.
“We’re finding cases where sometimes, unbeknownst to university officials, … the victims are being further victimized by the process,” Russlynn H. Ali, assistant secretary for civil rights, said at one of a few news conferences. “Our guidance seeks to help change that.”
Burden of Proof
Most notably, the letter ratifies prior recommendations for a relatively low burden of proof—"more likely than not"—in cases involving sexual misconduct, including assault. Several colleges have since issued statements, some of them from presidents, that their policies are now in line with the federal guidance, or soon will be: Brandeis University, the College of William & Mary, Stanford University, Yale. Some colleges have also said they will allow complainants, not just respondents, to appeal findings.
Higher-education groups have either applauded or winced as debates over compliance and fairness flare.
Victims needed more protections, says Brett A. Sokolow, president of the National Center for Higher Education Risk Management, a consultancy. “Balancing the process happens to favor the complainants at this point, because they’re the ones who have been historically disfavored.”
The letter says, for example, that colleges should “minimize the burden on the complainant,” transferring alleged perpetrators, if necessary, away from shared courses or housing. The advocacy groups Security on Campus and the American Association of University Women have praised the guidelines and ensuing changes in campus policies.
“Institutions will be much more responsive to victims’ needs,” says S. Daniel Carter, director of public policy for Security on Campus.
Other observers have decried what they see as a swing toward victim advocacy. A paragraph from the department’s 2001 guidelines, under the heading “Due Process Rights of the Accused,” became a sentence in the new letter. That doesn’t strike a balance but tips it, says William Creeley, director of legal and public advocacy at the Foundation for Individual Rights in Education, a free-speech group.
“We are hopeful that some university will say, ‘Hey, wait a minute, we think this is going too far,’” he says. But that is unlikely, he says: Nobody wants to challenge a campaign to end sexual violence.
‘Fair and Balanced’
Colleges, proclaiming safe learning environments, are applying the rules. Where confusion had lingered, federal expectations are now plain, says Susan M. Davis, associate vice president for student affairs at the University of Virginia. “For good or bad, the ‘Dear Colleague’ letter is pretty prescriptive.”
Virginia began revising its sexual-misconduct policies in December. Campus officials proposed a series of changes, including more assistance for victims; tighter definitions of “effective consent” and “incapacitation”; and a broader scope of offenses, such as cyberstalking and knowingly passing a sexually transmitted infection to another person. The university solicited feedback from experts and, through a Web site, comments from students, parents, and others.
It was during this process that the Education Department released its letter, and Virginia accordingly made a couple of changes it otherwise might not have. For one, it will no longer mediate between two parties in cases of sexual assault. The letter reiterates prior guidance to specific campuses on that point. “In cases involving allegations of sexual assault,” it says, “mediation is not appropriate even on a voluntary basis.”
But some victims request mediation—and won’t report or pursue allegations any other way, says Ms. Davis, a former associate general counsel at Virginia who has been investigating sexual-misconduct cases there since 2005. “That will be distressing,” she says.
University officials had considered changing their standard of proof, “clear and convincing evidence,” for finding students responsible; the letter decided that question. Virginia will now move to “preponderance of the evidence” (i.e., “more likely than not”), which the letter aligns with precedent for civil-rights law.
Of course a lower evidentiary standard implies that more students accused of sexual misconduct will be found responsible. “We have our work cut out for us,” Ms. Davis says, “to convince some students that this will be a fair and balanced process.”
Several colleges, in adopting the Education Department’s prior recommendations, had already lowered the burden of proof. Still, many kept using “clear and convincing,” and some, like Stanford, applied the criminal standard, “beyond a reasonable doubt.”
Colleges and Courts
Regardless of where it’s set, an evidentiary standard dictated by the federal government treats colleges like courts, says Ada Meloy, general counsel of the American Council on Education. And it limits their autonomy, she argues, at a time when many institutions have sought to make their conduct processes less legalistic.
The letter also orders comprehensive investigations into cases of alleged sexual misconduct, a requirement that worries some campus officials, says Ms. Meloy, who is sharing those concerns with the Education Department. Virginia and the University of Colorado began conducting such investigations several years ago in efforts to bring fairness and rigor to such cases. But small private institutions and community colleges, Ms. Meloy says, lack the necessary staff and resources.
Even a robust staff may not have skills in evaluating evidence and witnesses’ credibility, says Gina M. Smith, a lawyer in Philadelphia who works with colleges on sexual-misconduct policies. “These things are hard for courts and trained prosecutors,” she points out. A footnote to the department’s letter specifies that a “trained forensic examiner” should review evidence.
In this new era of enforcement, training will become even more vital—for students, faculty, and staff who investigate and decide sexual-misconduct charges, and for Title IX coordinators, whose role the letter outlines. Policies enshrine principles and intentions, but actual cases turn on personal interactions and judgment calls.
To guide those, Virginia has identified dual missions: “providing the utmost in care and support for victims while at the same time being mindful of the due process and privacy rights of accused students,” Patricia M. Lampkin, vice president and chief student-affairs officer, said in a statement.
Under new policies next fall, colleges will strive to comply with federal guidance and remain fair to all parties. If students find fault, they will, as ever, sue. In emulating courts, colleges also have to satisfy them.
