Each of us knows that it’s sometimes hard to do the right thing, and that it’s even more difficult when it’s not clear what the right thing is. Nowhere is this more apparent than in the debate about how colleges and universities should handle disciplinary proceedings in sexual-misconduct investigations.
Under pressure from victims’ advocates, the Education Department’s Office for Civil Rights, and others to be deferential to the complainant’s position, while at the same time increasingly vulnerable to lawsuits by accused students who claim they were treated unfairly, even the best-informed and well-meaning administrator may be faced with seemingly impossible choices.
The American College of Trial Lawyers believes that the right thing to do is to be fair to both sides, and that will probably mean neither side is completely happy. The hope is that both parties, along with their friends, classmates, and parents, as well as OCR and the courts, will recognize that the disciplinary process must respect and balance the rights and interests of all involved, and will accept the outcome as the product of a fair, rational system — even if they disagree with that outcome. The perception of fair treatment goes far toward making the result palatable.
The recent appointment of Candice Jackson as acting head of OCR is likely to create an opportunity, if not a need, for colleges and universities to review their disciplinary policies in sexual-assault cases. As noted by the nonprofit investigative journalism organization ProPublica, Jackson has a record that differs significantly from that of Catherine E. Lhamon, the office’s previous leader, whose interpretation of the agency’s 2011 “Dear Colleague” letter has had an enormous impact in the field. While Lhamon’s views and activities reflected the Obama administration’s policy interest in strengthening Title IX enforcement, there is nothing in the record of either Jackson or the Trump administration to suggest ideologic agreement with that position.
In light of the department’s decision in February to roll back an Obama-era rule allowing transgender public-school students to use the restroom of their choice, it would not be surprising if this new leadership produces significant changes both in the agency’s official policies and in the scope and focus of its enforcement activities.
In recent years, Republicans have sharply criticized OCR’s stance as overzealous and legally unfounded. Since the justification for the “Dear Colleague” letter was that it merely interpreted existing regulations — and thus was not subject to the public notice and comment period required for rule-making — it would require no more than a stroke of the pen for the new administration to withdraw and/or reinterpret the OCR’s previous positions. Likewise, the vigorous enforcement of recent years may be either actively curtailed by budgetary reductions or passively reduced by inactivity.
Any change in OCR’s vision should not be seen as an excuse for colleges and universities to be less vigilant in protecting the rights of their students. Rather, administrators and general counsel should use this opportunity to ensure that their institutions’ policies achieve fairness for all, not because of political pressures or the threat of lawsuits, but because it’s the right example for educational institutions to set for their students and the larger society.
After careful study and input from a variety of viewpoints, the American College of Trial Lawyers has developed a set of recommendations that focuses on the disciplinary process as a fair mechanism for the resolution of disputes. The recommendations reflect fundamental principles of fairness and due process that are deeply ingrained in our legal system, while recognizing the realities of college resources, the campus setting, and the particular needs of young participants. The recommendations will not make either side completely happy — and that is one reason we are convinced that they are fair to all concerned.
The most controversial recommendation is that the burden of proof should be by “clear and convincing evidence” — an intermediate standard familiar to lawyers — that attempts to strike a balance between the “preponderance of evidence” test currently supported by OCR and endorsed by advocates concerned with the possible impact of adversarial proceedings on victims, and the “reasonable doubt” standard favored by criminal-defense lawyers afraid of the admittedly serious long-term consequences for their student clients.
We concluded that the intermediate standard is appropriate because of the absence of many procedural safeguards available to litigants in the civil-justice system, coupled with the significant long-term impact of disciplinary proceedings on the participants.
In our opinion, the “preponderance of evidence” standard for a finding of responsibility in these cases is too low when the stakes are so high, and the full protections provided by our traditional judicial system, such as active assistance of counsel, discovery, motion practice, jury selection, trial with full cross-examination, and comprehensive appellate review, are not available.
These recommendations also endorse certain principles that are the cornerstone of the American legal system, leaving to each institution the decision about how best to put into practice these principles in a manner appropriate for its community. These principles include the right to be notified of the nature of the complaint, the right for both the complainant and the accused to have the assistance of legal counsel, the availability of some form of cross-examination to explore the statements of witnesses, and the necessity of a fair and impartial decision maker.
In making its recommendations, the trial-lawyers organization recognizes that educational institutions are not, cannot be, and should not be the same as formal judicial systems. Nevertheless, colleges and universities have an obligation to be fair to all of their students — women, men, complainants, accused, friends, witnesses, bystanders, and those completely uninvolved in an incident of alleged abuse.
Any change in OCR’s vision should not be seen as an excuse for colleges and universities to be less vigilant in protecting the rights of their students.
The presence of such safeguards is crucial to achieving a fair proceeding and a credible outcome for both sides; they should not be abandoned simply because the setting is a campus rather than a courtroom.
While espousing fundamental principles of fairness and due process, the recommendations are deliberately vague in the details.
Our hope is that administrators and general counsel will use these recommendations as the starting point to develop a fair, impartial, and credible disciplinary system that respects the rights of the entire college community, using their discretion and knowledge of their institution’s specific needs and resources to create policies that achieve these general principles. By ensuring fairness to all, colleges will be in the best position to fulfill their essential mission of providing a safe and effective learning environment for all.
No matter what process is applied, there will be difficult cases where the outcome doesn’t seem quite right. In almost every case, someone will be unhappy. That doesn’t mean that the process is wrong; it simply means that the participants are human, and it’s not always easy for human beings to do the right thing.
Elizabeth N. Mulvey served on the American College of Trial Lawyers’ Task Force on the Response of Universities and Colleges to Allegations of Sexual Violence. She is a lawyer in Boston.
