Season 3: Episode 6: Sexual Violence and Title IX Investigations

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Both universities and K-12 school districts are obligated to respond to complaints of sexual harassment or sexual violence promptly and thoroughly. But beyond that, additional administrative requirements can sometimes be controversial. What standard of proof should apply to a proceeding that could result in an expulsion for the accused student? Should cross-examining the accuser be permitted or does this ultimately risk violating the victim’s rights?  What input should the public have into these regulations? Continuing our discussion of Title IX,  Ben Chojnacki joins Lisa Woloszynek and Miriam Pearlmutter to talk through some of the more controversial regulations issued by the Office for Civil Rights during current and previous administrations. Join us to explore these and other high-profile topics related to sexual violence investigations in our schools and universities.

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Lisa: Welcome back to Class Act, updates and education law. I’m Lisa.

Miriam: I’m Miriam.

Lisa: We are attorneys at Walter | Haverfield in Cleveland, Ohio. We practice school law and every few weeks we get together to talk about the most recent legal developments in education that are relevant to schools, school boards, administrators, teachers, really anyone who works in education.

Miriam: Welcome back, everyone! Last time, we started talking about Title IX, an important law that prohibits discrimination based on sex and has many ramifications for colleges, universities as well as K to 12 school districts. We had last time with us, Ben Chojnacki from Walter | Haverfield and Ben is here with us again today. Welcome back, Ben!

Lisa: Welcome back.

Ben: Happy to be back, happy to be back.

Miriam: We are going to continue our discussion and touch upon some of the more controversial issues in Title IX. Today we will be talking about sexual violence and harassment. These areas might be triggering for some people, and if that’s something that you should take into consideration if you’re listening to this podcast with children in your car.

Lisa: Ben, let’s just dive into what are some of the areas of controversy in this area? I know there’s been some OCR guidance withdrawn. I think we mentioned that in our last episode with this new administration, but let’s dive into why that’s such a big deal and how this stands currently.

Ben: Sure. The big area of controversy is in the institution’s obligations and their responses to incidences of sexual violence, sexual harassment. Well, the law has been the law, but you have different policy regulations that have governed how or instructed how institutions might want to or should be complying with the requirements of Title IX for the purposes of response to sexual violence. This is a big deal because, so the two major ones are sexual violence and transgender issues.

Miriam: I think that all of this all kind of started when colleges and universities, I don’t know when you would say this was, maybe in the early 2000s, there was lot of concerns that not only were there rapes going on on college campuses, but that when a victim would report a rape, she would be treated poorly. She would be discriminated against and the violence that she reported would not be followed up on and the perpetrator would just get away with it, is that–

Ben: Yes, so big picture, what we’re dealing with is a policy decision by the Department of Education, recognizing that the atmosphere in the educational context was such that it did not encourage victims to come forward and report the crime or violate or act of harassment that they’ve been subject to. That was for a number of different reasons, but the idea that the Department of Education attempted to accomplish that to curb the chilling effect of reporting was to articulate some guidance in 2011 that allowed for a more friendly response and investigation that was victim-centered as opposed to a traditional investigation that carries with it some criminal components.

Miriam: Just for our audience, how does this relate to Title IX, how does this have anything to do with Title IX?

Ben: The Title IX prohibits discrimination on the basis of sex. The general theory and the general idea is that an institution who does not respond to an act of sexual violence which occurs because of sex is a response that has a disproportionate or discriminatory effect on the victim’s ability to attain her education or his education.

Miriam: We started talking about that last time when we discussed the Davis v. Monroe. Can you explain, are we actually talking about rape here, is this a criminal investigation, what are these University investigations?

Ben: Universities and school districts, we are talking about rape and we are talking about other instances of sexual violence, sexual assault, and assault more generally. As a school district, as a university, you are subject to the criminal laws of your jurisdiction. Those criminal laws prohibit rape, prohibit sexual assault, so separate from your obligations, which you have under Title IX to provide for a discrimination-free educational environment, there is a parallel obligation to address criminal matters. That’s something that should be done through the police and sometimes through the prosecutor’s office.

Miriam: That’s a separate situation.

Lisa: Right, so that your phrase parallel is really, really key for our school districts, where I really want to point out that even if you have an incident that is reported to police, there’s criminal charges, criminal investigation, districts still have a responsibility to investigate, separately but almost simultaneously. Often districts kind of stop their process because the criminal stuff is going on and that can be problematic because then they aren’t fulfilling their responsibilities to move through that process, especially when they know of something that would trigger an investigation.

Miriam: I just want to clarify, in a criminal investigation, if the perpetrator is found to be guilty, the outcome would be imprisonment, a jail sentence. In a university or in a school district investigation, what’s the ultimate punishment? You’re not going to– There’s no prison?

Ben: Correct. You’re looking at two different issues there. You’re looking at the accused potential violation of your Student Code of Conduct or your rules and regulations, so that’s a disciplinary action in and of itself.

Miriam: Like suspension, expulsion.

Ben: Suspension, expulsion, things like that. Separate from that you have the Title IX obligation to provide for the educational opportunities and benefit of the victim. One of the problems that you’ll run into especially if there is a serious matter that triggers a criminal investigation, you’re going to run into a situation where you’ve got a victim, who, while the criminal matter is proceeding is going to be forced to sit in a classroom, essentially with the assailant and that can’t really learn in that context.

Lisa: OCR has been previously pretty sympathetic to that position of the victim, right?

Miriam: I think that’s the guidance that Ben’s sort of talking about that in 2011, OCR issued guidance directing school districts and universities into how to conduct these investigations with a focus on the victim, with a sensitivity towards the victim. Some people thought it went overboard but let me let you talk a little bit more about that.

Ben: What you have is a response to this concern over the educational environment in 2010. The Obama administration’s OCR issued a “Dear Colleague” letter that set forth some pretty clear guidance for how investigations into allegations of sexual violence, sexual assault are to be handled by an institution. Those speak to both the procedural hearing process and the obligations of an investigation. Like we talked about, while this is going on and the incidents that lead to the procedure for how you go about investigating, that Davis case that we talked about previously–

Miriam: Davis v. Monroe, yes.

Ben: That case still exists and so you’ve got your deliberate indifferent standard that you need to be cognizant of as a school district or as a university, and then paired with that the 2011 letter essentially says that once you’re into that investigation standard, when you’re evaluating whether your code of conduct or an incident has occurred, they apply this preponderance of the evidence standard that says it’s more likely than not for an incident to have occurred.

Miriam: Let’s talk about that, the evidence standard. In a criminal context, I’m sure everybody who watches Law and Order, or any criminal show is that we are all familiar with beyond a reasonable doubt. In a criminal context in order to convict somebody, his or her guilt has to be proven beyond a reasonable doubt, which is a fairly high standard but that makes sense because the punishment is that you’re depriving them of their freedom of their liberty and there are other standards right? There’s the preponderance of the evidence standard.

Ben: Right. There’s the clearing convincing standard.

Miriam: Then there’s the clear– Preponderance of the evidence standard is basically more likely than not, am I correct?

Ben: Yes.

Miriam: More likely than not?

Ben: More likely than not.

Miriam: Did this happen? It’s more likely than not that this did take place, so like a 51% to 49% likelihood, that would meet the criteria of probable cause.

Ben: As you’re factfinder the burden that you have to figure out if something happened is much lower than what it would be in a criminal context.

Miriam: Then there’s also a middle standard, which is the clear and convincing standard, is that correct?

Ben: Correct.

Miriam: That’s between preponderance of the evidence and reasonable doubt.

Ben: Correct.

Miriam: The Obama administration said to school districts and colleges when you are looking to see if a rape took place, if a sexual assault took place, look at the lowest standard possible in deciding whether to suspend the student. If it’s more likely than not that it took place, then there’s guilt and then there’s a finding of guilt, is that correct?

Ben: That is correct. So the devil’s a little bit in the details there because again, a “Dear Colleague” letter like this one, although it’s been withdrawn, at the time it was in effect it did not have the force of law, it was guidance. So the guidance from the Office of Civil Rights was that you should be handling these matters using a preponderance of the evidence standard. That is not necessarily consistent with what courts have held the standard should be.

Miriam: Interesting.

Ben: The standard that the Office of Civil Rights is suggesting or mandating, that an institution or a school board apply in these situations, does not have the effect of law. An institution could exercise it’s discretion and not follow that standard, although it would be likely that you’re going to be found to be in violation of the OCR’s internal policies, and you’re going to be subject to some discipline. This is all again with subject to the caveat that we’re talking about something that’s been rescinded in the last couple of years.

Miriam: At that time, from what I remember, it was pretty controversial because, on one hand, this is guidance, on the other hand, OCR can and has threatened to remove federal funding. I remember there was some universities that said, “No, we like our process, we feel like what we have in place right now is fair to everybody and we are not going to use this preponderance of the evidence standard, we’re just going to keep doing whatever we’re doing because this is not even law, this is just guidance.” Then OCR says, “Oh, well, then we’re going to pull your funding.” Then that university would say, “Oh, well, never mind.”

Ben: Yes, you’ve got to make an institutional decision and that decision should be made with the advice of counsel. It depends on do you want to bend your policies to the whims of an administration that’s going to be gone in four years or do you not? That’s a calculated decision that someone has to make.

Miriam: Were there any other controversial pieces of this 2011 guidance?

Ben: There was. Probably the one that’s most significant, the one that spurned a significant amount of case law within the Sixth Circuit, which is where we practice, relates to the cross-examination of the accused, so the victim generally under the 2011 guidance, OCR discouraged the victim from being subject to cross-examination at the disciplinary hearing stage.

Miriam: In other words, the Office for Civil Rights said, “Even though typically, you as a school district or as a university would allow the accused a chance to question the victim or the accused attorney to question the victim, that’s not going to be allowed in situations where sexual violence, sexual assault is alleged, because that’s just too harmful and too damaging.” I think it was trying to curb this idea of slut-shaming, that women who reported a rape or reported a sexual assault would then be taking a risk that their entire sexual history would now be– they would be subject to an interrogation about their entire sexual history. I think the Office for Civil Rights was trying to be sensitive to that issue, but it became controversial.

Ben: Correct, yes. The Office of Civil Rights in 2011 made the policy decision to recognize that the chilling effect of having to stand subject to cross-examination by the person or their lawyer, the person who allegedly assaulted you, or they have their lawyers cross-examine you, it had such a negative effect that it really would curtail the reporting of cases or the reporting of an alleged violation. What you have is in the Sixth Circuit, in particular, a number of disciplinary cases have come out that speak to what right the accused is entitled to in terms of confronting the alleged victim in the context of the disciplinary hearing.

Miriam: Right, because in the criminal context, Ben and Lisa, so we know that you generally do have that right. If you’re accused of a murder or some other terrible crime, you have the right to confront your accuser.

Ben: Correct, you do, but as we talked about earlier, the Title IX administrative context is not a criminal matter. Now, the cases in the Sixth Circuit, in particular, have developed around the idea that when you are looking at a substantial-

Miriam: Disciplinary.

Ben: -disciplinary proceeding or substantial discipline then that right to confront your accused potentially is implicated. The guidance that the OCR provided in 2011, in 2017 and 2018, in the Sixth Circuit, fell subject to a potential weakness and that weakness was the accused was not afforded that right, and they were potentially at risk of facing expulsion or significant suspension.

Miriam: In other words, I think that what you’re saying that these courts decided, this court said, “Look, this student is up for expulsion, he can be expelled from this university and potentially lose the benefits of public state education, and because of that, we do have to allow this student to confront his accuser,” is that what the court deided?

Ben: I want to be…I’ll recite the cases narrowly, generally those cases apply to state institutions of higher education and generally those cases apply in situations where the factfinder, who the person responsible making that ultimate decision has to assess the credibility of the victim. Oftentimes in the Title IX context, the person who reports the assault or the sexual assault’s going to at some point have to make a report with your Title IX Coordinator. And that Title IX Coordinator is then going to prepare a report and that report is going to go somewhere. In these cases, what the Sixth Circuit decided essentially, the accused is saying that, “I’m not having the opportunity to cross-examine that statement, I need the person on the stand in front of the person who’s going to decide my fate as it relates to my ability to achieve in education.” So the factfinder needs to assess that person’s credibility. That line of case is narrow in its holding because it is generally state institutions of higher education where severe discipline relating sexual violence occurs, has the potential to apply generally beyond that. I’m not certain that you want to extend it too far to the school district context.

Lisa: I wanted to point that out. There definitely is a distinction there and for our K 12, listeners, school districts, that’s definitely an area to caution that it’s fairly nuanced in how this applies, especially even across different states it is different. You will want to be cautious and listening to what we’re discussing in this area, as it is in flux and when we’re talking about it more applying in these cases to universities or colleges that may not apply exactly to directly to the school districts. It’s an area that you definitely will want to reach out to legal counsel if you get into a situation where this thing is going to come into play.

Miriam: I think courts distinguish between what goes on at colleges and what the obligations are for elementary school and high school situations. If you are a school district and you have a situation where an accused wants to cross-examine a victim, you need to call your attorney and talk that through considerably ahead of time. One thing I do want to get back to though is another piece that was controversial about the 2011 guidance, I thought was that there was no notice and comments period. The public didn’t have a chance to weigh in on these regulations or these proposed regulations, is that correct?

Ben: Yes. The “Dear Colleague” letter in 2011 is subject towards the same criticism that all “Dear Colleague” letters are subject to and that is that it’s a unilateral interpretation of a law or administrative regulation. The 2011 “Dear Colleague” letter when it was written in 2017, which we can jump to in a minute, one of the rationale for that letter being withdrawn as articulated by the current OCR administration was that it was not subject to notice and comment, so the public did not provide that feedback. In the abstract whenever you’re passing a law whether it’s the Title IX statute or the corresponding Federal regs, the public has some input into that.

Miriam: Has some say, right?

Ben: Correct, but in the “Dear Colleague” letter context, that’s not the case. I think given the concern over the ambiguity into how institutions should be handling incidents of sexual violence, sexual assault, the decision to attempt to formally create law was one that was made by the current administration. What you have is, in September of 2017, the Office of Civil Rights issued a letter withdrawing the 2011 “Dear Colleague” letter and citing a number of reasons for that, but in essence, the goal was that the 2011 letter plus the 2014 guidance was not created with the benefit of input from the population, from the body, the voters or the residents and whoever it might be. Separate from that, there were some due process concerns that vary from state to state, locality to locality. Those things, whether it be timeframes for adjudicating a case, or how you handle the hearing itself, and what standard should apply was not–

Miriam: Consistent throughout the nation. The Trump administration essentially said, “We’re going to withdraw the 2011 guidance that the Obama administration put forth, and then we’re going to propose some regulations that the public will have a chance to comment on.” That’s where we are right now. In other words, the Trump administration’s proposed regulations have not taken effect, have not become final rule yet.

Lisa: Well, and I think it’s also important to point out with that Trump administration didn’t go to the extent of just saying we’re withdrawing it and issuing new guidance. We’re going to go a step further and actually look at how do we codify this into law so that it is consistent everywhere and we’re not just guiding you, this is concrete and what it needs to look like whether it be the process or the hearing or whatnot. We have these new proposed laws that are out there and had been open to comment. I honestly don’t know if that period is still open or not. Do you?

Ben: Yes. Know the period is closed. What happened is you had the withdrawal in September of 2017 but the withdrawal was likely going to be triggering a proposed rule shortly thereafter. It took about a year for that to happen, the proposed regs were published on November 15th, 2018 and there’s a 60-day comment period that took place where I don’t know the exact number but my recollection is a considerate number of people provided comments and feedback recognizing and pointing out that the areas where the proposed rules deviated from the 2011 “Dear Colleague” letter and to some extent jurisprudence in different jurisdictions across the country for how what standard of proof you need to use, what the timeframe for adjudicating a case might be and all these different obligations and responsibilities. What you have is in the process after the 60-day period close which closed in February. You have the administrative body now is tasked by law with reviewing those comments and creating a final rule that responds to and incorporates the substantive comments of the comment period. You’ll get a final regulation at some point that has the regs and then has an explanation of we received a comment on, what standard of proof we need to have. We’ve reviewed those and for these reasons we’ve considered A, B and C. A lot of times and particularly in this era I suspect that a lot of the responses are going to be deferring to the state regulatory bodies because there is a theory that states as laboratories will produce the best result and I think that there are comments to that effect that will encourage both sides, a nationwide rule and there’s state-specific rule for various responses to sexual assault, sexual violence.

Miriam: I guess I just I want to clarify the controversial piece of this. I think correct me if I’m wrong, but from what I understand the proposed rules that people were commenting on during that 60-day November-December period, those rules were seen by many as being overly punitive towards the victim and more favorable towards the alleged perpetrator.

Ben: I think it’s 100% accurate. One of the big things I think about when I’m dealing or looking at these issues is that Title IX in particular in this context is a pendulum that swings one way to the other. In 2011 the pendulum swung pretty far to the victim-centric let’s ensure that the avenues and rules and regs we’ve created are encouraging people to come forward and feel safe in reporting that over the course of the implementation of it over the five to seven years has caused the pendulum to swing a little bit more towards, “Well, hey, what about the accused here they have some rights that aren’t being accounted for.” One of the chief criticisms of the proposed final regs is that pendulum swing has gone pretty far to the other side.

Miriam: To the other way.

Ben: The hope and that if you trust in your government is that you will hopefully end up somewhere in the middle and that pendulum can be a stable point that institutions and school boards can look to as a bedrock for how they need to handle these things going forward.

Lisa: Right? It’s pretty ambiguous.

Miriam:. I think that’s really important. What should schools and universities be doing in the meantime before these rules are finalized during this in-between flux period?

Ben: I think you need to be consulting with your legal counsel and figuring out what the policy you want to apply is. I think you need to also consult with your legal counsel about what the reported decisions that bind your jurisdiction are.

Miriam: That’s very important.

Ben: In the Sixth Circuit there are reported decisions that are going to vary from what you might see in the Fourth Circuit, Second Circuit, First Circuit whatever the case may be.

Lisa: Certainly each state has different laws that are going to apply especially for K-12 investigations and such.

Ben: Exactly. There’s a minefield that you’re going to have to walk through and if you become aware of an incident of sexual violence, sexual harassment that you are responsible for in some way, shape or form, whether it happened on campus, off-campus but under your umbrella-

Miriam: Umbrella.

Ben: -you’re going to have to make sure you do things right.

Lisa: I think you mentioned a key thing that school districts sometimes get stuck on. Even if it occurs off-campus, you may still have an obligation to investigate if in some way it might impact the things that are happening on campus.

Miriam: Going on, yeah.

Lisa: If something’s reported off-campus don’t just jump to the conclusion you don’t need to do anything with it because it may be more nuanced than that.

Miriam: That’s right.

Ben: I think the big key is to remember that Title IX is designed to ensure that there is an equal opportunity in receiving your education and your educational benefits. If there’s something that you or someone at your school is actually or constructively aware of it’s going to affect the educational benefits of one of your students is receiving or entitled to receive then you need to figure out what your obligations are to respond.


Lisa: Absolutely.

Miriam:  Ben thank you so much for joining us today and talking about this important topic. We’re going to invite you back. Next time we will talk about another exciting and controversial issue. In the meantime, please subscribe to this podcast, rate us on Apple Podcast or Stitcher, or Google Music Play or wherever you get your podcast. Thanks very much. Have a great day!

Lisa: The content of this podcast is provided for general information purposes only. The podcast does not legal advice, does not create an attorney-client relationship and should not be relied upon in making legal decisions. Actions on legal matters should be taken only upon advice of legal counsel. Walter | Haverfield does not guarantee the accuracy of information contained in this podcast.