<p> Fear versus Fairness, Harmon-Vaught</p><p>FEAR VERSUS FAIRNESS: Title IX Requirements for Adjudicating Campus Sexual Assault</p><p>Mark T. Harmon-Vaught ‘15 Brooks College House 5 October 2014</p><p>Mark T. Harmon-Vaught studies government and Hispanic cultures at Franklin & Marshall College, where he is committed to promoting student health and preventing sexual violence. As delegate to the college’s Committee on Sexual Misconduct, Student Wellness Council, and Trustee Committee on Student Life and as student government president, Mark works closely with administrators and faculty to develop and implement effective policy and practices for student health, wellness, and safety. As an officer and past president of Men United Against Sexual Assault (MUASA), Mark provides bystander intervention training to campus and community groups and assists in sexual violence awareness campaigns. He plans to matriculate to law school in the fall of 2016. Fear versus Fairness, 2 </p><p>On June 23, 1972, President Richard Nixon signed into law a 37-word provision that some argue has had a greater effect on the American educational system than any other piece of federal legislation (Kasic 2008). This law—Title IX—sought to confront sex discrimination at educational institutions receiving federal funding by providing women equal access to education, comparable funding for athletic programs, and freedom from sexual harassment. Title IX has made enormous strides toward gender equality in higher education, and is often cited as a reason that more women than men are now enrolled in US colleges and universities (Sebelius 2012). Throughout much of Title IX’s 42-year history, this legacy of achievement for equality in athletics and beyond has defined the public discourse around the legislation. Today, however, our discussions of Title IX often relate to a different manifestation of the law: its regulation of how colleges address sexual misconduct. In the past five years, sexual misconduct has become an increasingly visible issue in the public consciousness, and federal policy has been quick to respond. In April 2011, the Office for Civil Rights of the Department of Education (“OCR”) issued a now-infamous “Dear Colleague Letter,” the first in a series of policy guidance documents that have clarified the requirements for colleges in evaluating claims of sexual misconduct (Ali 2011, 2). Coinciding with the 2013 renewal of the Violence Against Women Act, the White House began a new campaign to end sexual assault and dating violence called “1 is 2 many.” In May 2014, the White House released a list of—at this writing—76 schools under review by the OCR for their handling of sexual misconduct cases, including Franklin & Marshall College (Office for Civil Rights 2014). The White House launched another campaign called “It’s On Us” in September 2014, an initiative to engage student groups in its efforts to prevent sexual violence and promote bystander intervention. Statistics reveal that sexual violence is a major problem on college campuses. The Campus Sexual Assault Study, a report completed for the Department of Justice in 2007, found that 19% or approximately one in five college women have experienced sexual assault during their time on campus (Krebs, Lindquist and Warner 2007, xviii). Studies have also asserted that less than 5% of sexual assaults that occur on college campuses are reported (Fisher, Cullen and Turner 2000, 23). Over the past five years, media and press have reported on several educational institutions that have mishandled, ignored, or even concealed reports of sexual assault (Karjane, Fisher and Cullen 2002, xiii). An NPR report also found that before 2010, the Department of Education was failing in its duty to monitor aggressively and regulate campus response to sexual assault (Shapiro 2010, 6). “The question isn’t whether your institution has a sexual assault problem,” says victim advocate David Lisak, “it is whether your institution is confronting it with honesty and integrity” (Lisak 2013). In its rise to public consciousness, sexual assault on campus—and how we address it— has become an issue enmeshed in ideological rhetoric. A whole new vocabulary has entered our popular discourse with the rise of new ideologically charged terms like “rape culture,” “slut shaming,” “victim blaming,” “gray rape,” and “regretted sex” (Tavris 2014). By consequence, Title IX itself has become a divisive piece of legislation. Proponents of Title IX’s recent enforcement measures celebrate the government’s actions as bold responses to a long-ignored crisis. Across the ideological divide, Title IX opponents question the legitimacy, effectiveness, and appropriateness of these government interventions. No matter one’s opinion of Title IX, its requirement that colleges investigate and adjudicate claims of sexual misconduct, and the penalties it imposes on those that do not, are in full force today. Homing in on Title IX’s sexual misconduct component, this paper seeks to step beyond ideological rhetoric to assess whether the Fear versus Fairness, 3 law’s requirements for colleges’ handling of sexual misconduct cases are just, practical, and equitable. In the United States, the term “rape” often conjures up an image of an unknown assailant jumping out from the bushes in a surprise attack on an unsuspecting victim. This form of sexual assault, described in the literature as “forcible,” is often portrayed on television shows like Law and Order: Special Victims Unit. Forcible assault, by one consensus definition, is “unwanted sexual contact or intercourse that occurs due to force or threat of force, but in the absence of alcohol or drug influences on the victim” (Lawyer, et al. 2010, 454). The impetus for many of the reforms to campus sexual misconduct procedures –the case of Jeanne Cleary—falls into the forcible category. In 1987, Jeanne Clery was a 19-year-old freshman at Lehigh University who was sleeping in her dorm room one night when a student she did not know entered her room, raped, tortured, and strangled her to death. After Jeanne’s death, her parents lobbied Congress to pass the Clery Act of 1990, requiring colleges to produce a public report of all crimes that happen on and around campus, and to make this information available to students and parents. The twofold objectives of the act are to allow parents and students to make informed decisions about the safety of an institution, and to subject colleges to public scrutiny so they will make crime prevention a priority (Shapiro 2010, 2). But forcible assault, like the extreme example of Jeanne Cleary, is not the kind we most often encounter on the college campus. According to the CSA Study, only 4.7% of women had experienced forcible assault while on campus (Krebs, Lindquist and Warner 2007, xiii). Instead, the majority of campus assaults fall into the category of “drug-related,” in which at least one party is “too intoxicated or high to provide consent either after voluntary consumption of alcohol or drugs, or after having been given a drug without the party’s consent” (Lawyer, et al. 2010, 454). One notable 2010 campus study found that drug-related sexual assaults occur five times as often as forcible assaults at college (Lawyer, et al. 2010, 458). Although Jeanne Cleary was attacked by a stranger, the overwhelming majority of campus sexual assaults, between 87% and 98%, are committed by victims’ acquaintances (Krebs, Lindquist and Warner 2007, 4). These drug-related acquaintance assaults are far more difficult for colleges to adjudicate, let alone for the criminal justice system to prosecute. In 96% of these cases nationally (Lawyer, et al. 2010, 457) and 99% at F&M (Masland 2014), one or both parties were intoxicated due to alcohol at the time of the alleged assault, leading to controverted “he said, she said” claims about non- consensual activity. In these situations, details are usually murky and evidence is sparse, leaving prosecutors unable to mount criminal cases. Campus adjudicators, on the other hand, cannot decline to investigate. The lack of clear evidence in claims of drug-related sexual assault makes them more difficult to resolve than claims of forcible assault. As a consequence, adjudicators must make heuristic determinations of the validity of both parties’ testimonies. An underlying assumption that prevails in these cases is that complainants never lie about what they have experienced, and many epidemiological studies lend credibility to this assumption. The percentage of sexual misconduct reports that are intentionally deceitful varies between 1% and 8% in the literature (Lisak, Gardinier, et al. 2010). Though there has been a handful of prominent instances in which individuals have knowingly issued false accusations —think the Duke lacrosse scandal—these cases constitute a tiny fraction of the total sexual misconduct claims under review on college campuses. The upshot of this evidence is that we should not assume complainants are lying when they report having experienced sexual assault. But, we must be cautious not to overextend this Fear versus Fairness, 4 conclusion. The assumption that the complainant is telling the truth is not an excuse for ignoring the evidence behind the claim. Our ability to execute fair and impartial examinations of fact is colored when we ignore this distinction. “Always believe the victim,” the mantra goes, “even when there is no evidence of a sexual assault, and even when the victim cannot remember anything about what happened.” Social psychologist Carol Tavris explains the false dichotomy in this belief: “the discounting of evidence in allegation of sexual coercion and rape means [the complainant] is either the innocent victim of a knowing rapist, or the knowing false accuser of an innocent man” (Tavris 2014). Tavris continues by explaining that this way of thinking denies the possibility of a third option consistent with decades of studies on human memory: that “each [party] may honestly believe that he or she is telling the truth, and one or both of them may be wrong” (Tavris 2014). This concept is described in the work of social psychologist Deborah Davis, et al., as “honest false testimony” (Villalobos, Davis and Leo 2015 Forthcoming), in which one or both parties confabulate or misremember certain details about an event. This tendency, notes Davis in another study, is exacerbated when alcohol or other drugs come into play, as in the majority of sexual misconduct claims on college campuses (Davis and Loftus 2009, 1016-1017). In situations of honest false testimony, a defendant may honestly believe that he had achieved consent to a sexual behavior, and a complainant may honestly believe that she had made her objection known. As Tavris notes, “The intersection between consensual and non-consensual sex is often not marked with traffic signals” (Tavris 2014). Honest false testimony can confound the college adjudication process that sees sex within the simplistic binary of consented versus forced. The actual ways in which students give and deny consent are often far more complex than institutions interpret them to be, involving verbal and non-verbal cues, and a process that develops over time (Davis and Loftus 2009, 1015). These complexities continue to be teased out in psychological studies (Jozkowski, et al. 2014), but no simple consensus exists in the literature about patterns of consent. Davis concludes that intoxication of the complainant may affect her credibility, and may contribute to unintentional false accusations of sexual misconduct (Davis and Loftus 2009, 1018). Of course, these conclusions might have dangerous consequences if taken in a vacuum. The tendency toward honest false testimony does not alleviate any party from blame, nor does it suggest that sexual assaults only occur as results of miscommunication or accidents of circumstance. It does necessitate an impartial judicial process that can sort out facts, preferring evidence to mere “he said-she said” claims, and affording both parties fairness and due process. Under Title IX, sexual misconduct is construed as a spectrum from “unwelcome sexual advances” to felony-equivalent claims of sexual assault and rape (Ali 2011, 3-4), and colleges are required to act whenever a claim of misconduct is reported. Schools must make these efforts regardless of the action or lack thereof by police or the court system. The mandatory campus judicial process combines procedures from workplace discrimination resolution programs and the criminal justice system. Schools are required by Title IX to perform thorough and confidential administrative investigations, provide temporary measures for protection of the complainant, and resolve misconduct claims promptly. As spelled out in the Dear Colleague Letter, the judicial process must allow the complainant and defendant to present evidence and to call their own witnesses. Both parties may have a representative of their choosing present for any hearings, but neither party may cross-examine the other. The claim must be heard by an impartial judicial panel of administrators who, though given special training, are not required to have any Fear versus Fairness, 5 legal background (Ali 2011, 9). Title IX gives schools significant leeway in determining the appropriate level of training for these administrators. To differentiate decisions handed down by the schools from court verdicts, Title IX requires that defendants be found “responsible” or “not responsible” as opposed to “guilty” or “not guilty.” Schools are also provided the option of finding “insufficient evidence” to decide responsibility (Karjane, Fisher and Cullen 2002, 136). Some scholars and activists applaud this framework for adjudication as creating a fair and impartial system that can be mapped onto any college or university campus. In this view, the campus process offers a reliable and more direct route to justice for victims of sexual assault who might be overlooked by the criminal justice system. Others feel far less comfortable with this model: Peter F. Lake, director of the Center for Excellence in Higher Education Law and Policy, laments that schools have “been lured into doing something in a criminal justice model that the criminal justice system itself hasn't been able to deal with” (Lipka 2011, 22). And Lake’s concern is well founded: criminal courts have engaged in what one scholar called “a long and deplorable history of insensitivity toward crimes of sexual violence” (Henrick 2013, 91). The campus judicial model does maintain some of the formalities of the criminal justice system such as the investigation and hearing, but with one glaring difference: the burden of proof at which claims are adjudicated. The Dear Colleague Letter mandates that schools decide sexual misconduct claims at the preponderance level (Ali 2011). This low burden of proof, sometimes explained as “50% plus 1” likelihood, requires only that a violation be more likely than not to have occurred, the same standard used in the civil courts. By contrast, sexual assault and rape cases in the criminal justice system are decided at the highest burden of proof: beyond a reasonable doubt. Before the Dear Colleague Letter, several institutions including Harvard, Yale, and Cornell used the intermediate standard of “clear and convincing evidence,” sometimes explained as the 75% likelihood standard. In the eyes of these institutions, this standard allowed for a fairer process that would not be possible with the higher or lower burdens. They feared that the higher burden would make findings of responsibility almost impossible, while the lower burden would make them virtually inevitable. In favor of the new preponderance standard, legal scholar Lavinia Weizel argues that it “enables schools to ensure that the interests of the victimized student and the school community are properly weighed against the interests of the accused” (Weizel 2012, 1638). School administrators often point out that sexual misconduct hearings are part of an educational not a legal process as they concern community standards rather than laws. For this reason, they argue, the burden of proof needs not be as high as in a criminal court (Weizel 2012, 1655). Many scholars believe the newly mandated burden of proof is too low. “Using a preponderance standard does not comport with the gravity of the charges against the accused,” argues attorney Barclay Hendrix (Hendrix 2013, 610-11). The Committee on Women in the Academic Profession of the American Association of University Professors agrees, having also published a response to the Dear Colleague Letter criticizing the new lower standard (Henrick 2013, 62). Given that the overwhelming majority of sexual misconduct cases seen on college campuses are drug-related, in which facts are often hard to discern and evidence is rarely available, these scholars believe that the preponderance standard makes findings of responsibility too easy. To better understand this suggestion, we must ask where the burden of proof actually lies in these claims. Often, the only evidence offered in support of a claim of sexual misconduct is the testimony of the complainant, which, according to the predominant rhetoric, must be believed under any circumstance. If the total veracity of the complainant’s testimony is assumed, Fear versus Fairness, 6 the burden of proof necessarily falls upon the defendant to prove his innocence, a difficult goal given the low bar set for his opponent. The defendant enters the room already assumed responsible with the sole hope of presenting exculpatory evidence that might exonerate him. Under this condition, a bias toward a decision of responsibility undermines the equity and legitimacy of the process. Unfortunately, outside influences upon schools further prejudice their adjudication proceedings. Threats levied by the OCR against educational institutions constitute systemic pressures upon these schools to find defendants responsible. Scholar Stephen Henrick explains, “Title IX is only as effective as the remedy it provides for a school’s non-compliance” (Henrick 2013, 52). It follows that the OCR would provide penalties for disobedient institutions. Schools found in violation of Title IX may face steep fines, and even the loss of all federal funding. Deciding the “wrong” way in a sexual misconduct claim exposes institutions to these risks more than committing procedural errors. In Title IX’s 42 years, the OCR has almost never fined a college and has never revoked all funding (Shapiro 2010); but, with increased media attention and public scrutiny, the frequency of the penalties is likely to increase. Of course, these threats come with a safeguard: the OCR must investigate and find wrongdoing on the part of the college before its threats are realized. Proponents of the system argue that even if colleges feel pressured to “get it right” with judicial outcomes, these institutions are not unduly influenced to decided claims in a certain way. This protection assumes that the complainant and defendant have equal access to recourse against the adjudicating institution, such that either party could challenge a school they believe to be in the wrong. But, as we explore the appeal process, we find that this assumption does not hold. The threat against an institution from a person wrongfully found responsible for sexual misconduct is far lower than that of a complainant dissatisfied by a finding of “not responsible” or of insufficient evidence. While Title IX does not mandate that colleges allow internal appeals to judicial outcomes, the law does provide the option to file a complaint against the school with the OCR. Found responsible, defendants technically have the same recourse for appeal as complainants: in their cases, to file a complaint for wrongful discipline. Defendants have a far more difficult time than complainants demonstrating that a school has violated their Title IX protections. Only once in the history of the OCR’s program has an accused student made such a claim, and in that one case, the OCR found insufficient evidence of a Title IX violation by the institution (Henrick 2013, 69). As highlighted in a September 2014 article of the Chronicle of Higher Education, several defendants disciplined by sexual misconduct proceedings continue to challenge the school’s decisions even after being expelled. Some of the schools have settled lawsuits with accused students, and others have overturned their decisions following exoneration of defendants in criminal courts or presentation of new exculpatory evidence (Wilson 2014). A dissatisfied complainant need only file a complaint with the OCR to confront the institution that has found against the complainant, which we will see can have disastrous implications for the institution even before a finding of wrongdoing. A dissatisfied defendant must mount a case in civil court or hope for exoneration in criminal court to achieve the same result. Here, we see the imbalance in legal recourse available to the two parties, a balance further offset by the way in which OCR has handled complaints it has received. The OCR has further tipped the scales against the accused by performing specific interventions to overturn the outcomes of judicial processes that have found in favor of the defendant. Scholar Stephen Henrick reviewed over 220 administrative enforcement decisions Fear versus Fairness, 7 from the OCR generally available only to the government and the institution they concern. They include settlements of complaints against institutions for failure to comply with Title IX. Henrick notes several instances in which the OCR agreed to drop Title IX accusations against colleges that re-opened investigations against defendants already found not responsible. As Henrick argues, the mandate to “re-open investigations” in these claims implies the need to reverse findings of “not responsible” or to re-evaluate evidence previously determined to be insufficient (Henrick 2013, 71). The OCR has never overturned a school’s decision to find a defendant responsible. These actions by the OCR compound the pressures upon educational institutions to assume guilt rather than evaluate evidence, undermining the fundamental fairness of the sexual misconduct judicial process. To make matters worse, colleges now face another threat from the OCR that does not require any finding of wrongdoing: the list. In May 2014, the OCR made public a list of schools under review for their handling of sexual misconduct claims under Title IX. To be placed on this list requires that a single complainant file a complaint against the school with the OCR. Immediately upon its filing, and before even a cursory review of its merits, this complaint triggers an investigation into the institution’s whole adjudication process and results in the school’s automatic addition to the public list (Walker 2010, 101). That list, which included 48 institutions when published in May, now catalogues 76 schools under review (Kingkade 2014). Despite the OCR’s explicit notice that an institution’s appearance on this list does not imply any wrongdoing, the court of public opinion does not withhold its condemnation. Colleges on this list are denied the opportunity to defend themselves because any disclosure about the handling of a sexual misconduct claim would itself be an explicit violation of the school’s Title IX requirement of confidentiality. Take for example the case of Franklin & Marshall College. Over the past three years around 90 incidents of sexual misconduct have been reported through the system required under Title IX (Masland 2014). Out of these 90 or so claims, one complainant was dissatisfied enough with the college’s handling of his or her claim that he or she filed a complaint against the college with the OCR. Of course, the complainant is within his or her rights in doing so, and this measure might be an effective means of addressing a misstep on the part of the College. When the OCR decided to publish the list in May of 2014, Franklin & Marshall College appeared alongside 47 other institutions also under investigation. The college has since been subject to significant public shaming, including articles published in local and national papers decrying the college for its “bizarre and cruel” mishandling of sexual misconduct claims (Cassidy 2014). At this writing, though the OCR has opened its investigation, it has yet to visit the campus, the first step in its assessment of the college’s handling. The situation at F&M is typical of the negative publicity institutions receive when added to the public list. As a result of a single claim, regardless of its merit, colleges like F&M must surrender every document related to every misconduct claim reviewed over the past three years. And some institutions have remained on this now-public list for a long time. The Ohio State University, for example, only recently received total clearance on a Title IX claim made over four years ago (Chandra 2014). The OSU case is not unique: the majority of Title IX complaints to the OCR result in a school’s indemnity. Even eventual clearance cannot undo possibly years’ worth of negative publicity that the institution suffered. By creating an appeal system against schools that includes public shaming before any finding of wrongdoing, the OCR subjects institutions to intense and possibly unwarranted scrutiny, and it informs the way that schools act for fear of unjustified Fear versus Fairness, 8 damage to their reputations. This public shaming tactic intends to force colleges to take seriously reported sexual misconduct claims. Instead, it compels them to decide claims in the way least likely to damage to the institution’s reputation, which almost always means finding for the complainant. We do not yet have sufficient data to make determination whether publication of the list has had direct effect on outcomes of misconduct claims, although it will not be a surprise if we begin to see fewer findings of “not responsible” or “insufficient evidence.” The political pressures of the OCR list can infiltrate campus judicial processes without any nefarious intent on the part of adjudicators. In combination with the ideological and systemic pressures already biasing adjudicators against defendants, these pressures make it impossible to assure fairness and equal protection for accused students. So, how can we ensure a fairer adjudication process for sexual misconduct? Given the documented history of educational institutions mishandling claims of sexual misconduct, one can hardly argue for total deregulation. Nevertheless, the present difficulties impeding fair and impartial hearings seem to result from the limited institutional competence of schools to handle these complex sexual misconduct claims, and the influential pressures upon the system from the OCR and public opinion. Henrick’s answer is simple: the only fair way to handle these cases is to refer them directly to civil and criminal courts (Henrick 2013, 92). This solution is not tenable, given the reluctance of prosecutors to take hard-to-win “he said, she said” drug-related assault cases. Others, like Yale law professor Jeb Rubenfeld, suggest the creation of independent review boards that will not be subject to the same institutional pressures as schools themselves (Rubenfeld 2014). But, with independent review boards come further complications to the issues of confidentiality, promptness, and equitability, as well as inflexibility in Title IX’s concern for the safety of the campus community.</p><p>In short, there is no simple resolution. We cannot expect complex drug-related misconduct claims to become easier to adjudicate. Instead, the difficulty of these claims makes necessary improved efforts for prevention of sexual misconduct through consent positive programs, bystander intervention training, and processes for identifying potential repeat offenders. In adjudication, we must ensure that administrators attend foremost to the evaluation of evidence and to the rights of both parties. These processes must account for the complexities of consent, the role of alcohol and other drugs, and the potential for honest false testimony. 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