Inappropriate sexual contact of any kind, and certainly sexual violence and assault, is not only offensive, dangerous and often criminal but also anathema to the safe and welcoming environments for learning, maturation and socialization that colleges strive to be and to market to their tuition paying students and prospective students. College campuses though are not sheltered cloisters, so schools are routinely forced to confront the proliferation of sexual misconduct complaints and allegations among their student populations.
When addressing these complaints, colleges must walk a tightrope to try to strike a fair and proper balance between and among the often competing concerns of protecting the safety of their students, being sensitive to and supportive of the needs of the student victim, guarding the college’s reputation, adjudicating a fair and correct outcome of serious and sometimes life altering allegations and protecting the due process rights of the accused, who is also a student and a member of the college community. Exacerbating these tensions for college administrators is the always looming threat of the possible and calamitous loss of federal funding if their procedures and processes do not properly comply with Title IX. The threat became more worrisome for colleges when the United States Department of Education, Office of Civil Rights (“OCR”), which administers Title IX, stepped up its oversight of college sexual misconduct proceedings after President Obama took office and issued a “Dear Colleague Letter” to the schools in 2011.
The 2011 Dear Colleague Letter presented guidelines for federally funded institutions of higher education to handle sexual misconduct complaints, investigations, hearings, adjudications, appeals and disciplinary actions in a manner that OCR believed to be consistent with Title IX. Among the stated goals of the Dear Colleague Letter was to ensure that college investigations and adjudications of sexual misconduct complaints are impartial, equitable, reasonably prompt and sensitive to the needs and safety of the alleged victim, while also being consistent with due process for the alleged perpetrator.
Although OCR styled its Dear Colleague Letter as offering mere guidelines, the letter was more of a mandate because colleges knew that if they did not follow the guidelines they jeopardized their critical federal funding. Accordingly, the Dear Colleague Letter informed American colleges and universities how they needed to conduct their sexual misconduct disciplinary proceedings to comply with Title IX, as OCR saw it, and remain in OCR’s good graces.
Among other things, OCR made clear in the Dear Colleague Letter that college disciplinary hearings were not to follow traditional courtroom or litigation models. Thus, cross-examination was strongly discouraged, live or non-hearsay testimony was deemed not to be essential, colleges were not required to permit lawyers to participate in the proceedings, the alleged perpetrator was not allowed to present character witnesses unless the alleged victim also offered character evidence and most controversially, schools were directed to use only a “preponderance of the evidence” standard of proof because the more rigorous “clear and convincing” standard was “not equitable under Title IX”.
Colleges that followed the procedures and standards enunciated in the Dear Colleague Letter necessarily reduced their risk of an OCR investigation or enforcement proceeding. Conversely though, at the same time they exposed themselves to the risks and costs of litigation when lawsuits by aggrieved students accused or found guilty of sexual misconduct under OCR’s new and generally lower standards proliferated after colleges began implementing the 2011 Dear Colleague Letter guidelines.
Colleges and universities have also had to contend with litigation commenced by dissatisfied or disillusioned complainants who also have attacked their school’s disciplinary hearing results as skewed or asserted that their college violated Title IX by being insensitive or insufficiently responsive to sexual assault victims and/or to sexual assault complaints.
In September 2017, Education Secretary Betsy Devos rescinded the 2011 Dear Colleague Letter. While that likely reduced some of the schools’ concerns about OCR aggressively enforcing Title IX, it probably will not greatly impact the number of lawsuits being brought by aggrieved students because colleges are going to be reluctant to change or discard the Title IX procedures that they put into place or modified to comply with the Dear Colleague Letter.