Saving Title IX: Designing More Equitable and Efficient Investigation Procedures

Emma Ellman-Golan* October, 2017

In 2011, the Department of Education’s Office of Civil Rights (OCR) issued guidance on Title IX compliance. This guidance has resulted in the creation of investigative and adjudicatory tribunals at colleges and universities receiving federal funds to hear claims of sexual assault, harassment, and violence. OCR’s enforcement efforts are a laudable response to an epidemic of sexual violence on college campuses, but they have faced criticism from administrators, law professors, and potential members of the Trump Administration. This Note suggests ways to alter current Title IX enforcement mechanisms to placate critics and to maintain OCR enforcement as a bulwark against sexual violence on college campuses.

Introduction

In recent years, the problem of sexual assaults on college campuses has attracted widespread attention.¹ An estimated one in five women is sexually assaulted while in college.² These assaults are overwhelmingly perpetrated by people known to the victim, such as friends, classmates, hallmates, and dates.³ Ninety percent of campus sexual assaults are not reported.⁴ Whether the rate of sexual assaults on college campuses has suddenly increased or whether the media has simply devoted more attention to the problem, reports of the prevalence of sexual assaults on college campuses have resulted in dramatic changes from both school administrations and the federal government.

Many entities have drawn attention to this problem. Student activists have founded organizations dedicated to raising awareness of campus sexual assault, building networks among sexual assault victims, documenting universities’ inadequate responses, and encouraging students to file Title IX complaints against their schools with the Federal Department of Education.⁵ Journalists, too, have drawn attention to the issue. Since 2009, the Center for Public Integrity has been investigating university responses to students’ sexual assault complaints.⁶ This investigation led to a series of stories exposing the degree to which schools actively protected accused students and failed to impose any consequences on students found to have engaged in sexual harassment or violence.⁷ The stories detailed lenient consequences for students found responsible for acts of sexual violence against other students. Students were punished with suspensions during the summer semester, alcohol treatment, or assignments to “write a letter of apology, or make a presentation to a campus advocacy group, or write a research paper on sexual violence.”⁸

Other news reports based on incidents around that time similarly suggest a climate tolerant of sexual assault. In one, a student who reported an assault to a campus police officer claimed that the officer responded, “[W]omen need to stop spreading their legs like peanut butter or rape is going to keep on happening ‘til the cows come home.”⁹ In another, a school administration stopped all communication with a student who had reported a sexual assault to an administrator once the administrator found the student filed a formal complaint.¹⁰ After multiple follow-ups from the student, the university not only chose not to proceed with her complaint but dismissed her for poor academic performance, which she claimed was a result of her psychological trauma because of the assault.¹¹

Subsequent Department of Education investigations corroborated the media’s findings, particularly as to the inadequacy of schools’ responses to complaints about sexual harassment and violence. At multiple schools, officials ignored complaints of sexual harassment.¹² They prevented prompt and equitable resolutions of complaints by placing significant administrative burdens in front of students or staff members who sought to report an incident.¹³ They improperly encouraged alleged rape victims to attend mediation with their alleged rapists.¹⁴ They discouraged students from filing complaints by insinuating that an investigation would be too disruptive to the students’ lives.¹⁵ They failed to protect students against retaliation by friends of the accused.¹⁶ They gave preferential treatment to accused student-athletes.¹⁷ In one case, school administrators took eighteen months after a claim was filed to determine that there was insufficient evidence to support the student’s allegation of sexual assault.¹⁸ Further, administrators imposed sanctions on the complaining student for fraud and misrepresentation to school officials.¹⁹ And one school allowed its marching band to haze its recruits in sexualized rituals of which the band’s director, a school employee, was aware.²⁰

The Department of Education’s Office of Civil Rights (OCR) under President Obama was troubled by these practices that took place at schools across the country.²¹ OCR believed that schools’ insufficient attempts to prevent or remedy sexual harassment and violence on college campuses constituted violations of Title IX of the Education Amendments of 1972,²² the federal statute designed to eliminate sex-based barriers to educational equality.²³ OCR likely viewed the prevalence of sexual assaults on campuses as a result of shortfalls in its existing guidance.²⁴

In April of 2011, OCR issued a Dear Colleague Letter (DCL) that called on school administrators to “take immediate and effective steps to end sexual harassment and sexual violence.”²⁵ The letter took the form of guidance: it explained that OCR’s interpretation of schools’ obligation under Title IX is to prevent and remedy sexual harassment and discrimination.²⁶ It also suggested ways for schools to alter their sexual misconduct policies and reporting and investigation procedures to achieve compliance with the department’s interpretation of Title IX.²⁷

The DCL changed the landscape of Title IX enforcement: in response, schools hastily revised or rewrote their policies to achieve compliance and established quasi bureaucracies within each institution to investigate and resolve complaints of sexual harassment or violence.²⁸ It also led to a significant increase in OCR investigations of institutions of higher learning for possible Title IX violations.²⁹ The DCL does not carry the force of law; it is administrative guidance that explains the agency’s interpretation of existing law³⁰—but since noncompliance with its directives can put schools’ federal funds at risk,³¹ it has had the effect of imposing new regulations on schools.

OCR’s new requirements have received significant backlash from those who believe that schools should not be in the business of investigating sexual harassment or assault claims, or that the investigations OCR recommends infringe on accused students’ due process rights.³² And because OCR’s steps to curtail sexual violence on college campuses have been by administrative fiat, rather than by legislation, its post-2011 changes can easily be undone by the Trump Administration, whose surrogates have signaled that they are considering halting OCR’s enforcement of Title IX.³³

This Note argues that Title IX enforcement is necessary to promote school³⁴ policies that prevent the epidemic of sexual violence on college campuses. Part I outlines the new landscape of OCR enforcement after the Dear Colleague Letter. Part II argues that universities should investigate and adjudicate complaints of sexual violence and acknowledges some of the shortcomings of the current approach. Part III offers solutions to the concerns that schools do not have the resources to investigate effectively and that their investigations violate the rights of accused students. It suggests alternative means of conducting investigations and determining responsibility, which may placate OCR’s critics and persuade the Trump Administration to continue the trend of Title IX enforcement.

I. The New Landscape of Title IX Enforcement at Universities

The Department of Education’s Office of Civil Rights ensures compliance with federal civil rights laws by entities receiving Federal Department of Education funds.³⁵ The agency periodically releases letters and documents that it deems “significant guidance documents.”³⁶ These documents “do[] not add requirements to applicable law, but provide[] information and examples to inform recipients about how OCR evaluates whether covered entities are complying with their legal obligations.”³⁷ This Part details the two main forms of OCR guidance. Section I.A discusses OCR’s 2011 Dear Colleague Letter and 2014 Questions & Answers on Sexual Violence (Q&A). Section I.B analyzes OCR’s letters to specific university administrators at the culmination of its investigations of those particular schools.

A. OCR Guidance

OCR’s release of the Dear Colleague Letter in 2011 began the current trend³⁸ of heightened agency enforcement of Title IX. The DCL used statistics on the prevalence of sexual violence on college campuses to draw the inference that schools’ existing efforts to address the problem were inadequate, and it called on schools to take “immediate and effective steps to end sexual harassment and sexual violence.”³⁹ The DCL imposed increasingly stringent requirements on universities by describing how schools should investigate complaints of sexual harassment and violence.⁴⁰

The DCL created new obligations for universities. It requires universities to respond to and prevent sexual harassment and violence that has the potential to create a hostile environment.⁴¹ It reiterates that a “hostile environment” is one in which harassment is sufficiently severe, persistent, or pervasive, but notes that a “hostile environment” can be defined based on the severity of the conduct at issue. It emphasizes that “a single or isolated incident of sexual harassment may create a hostile environment if the incident is sufficiently severe. For instance, a single instance of rape is sufficiently severe to create a hostile environment.”⁴² Once a school “knows or reasonably should know” about an incident of sexual violence affecting a student, the school must “take immediate action” to investigate and eliminate the reported behavior, regardless of whether the incident took place on or off campus.⁴³ The DCL also reminds schools that Title IX explicitly prohibits retaliation against anyone who files a complaint.⁴⁴

More specifically, the DCL calls upon schools to publish a notice of nondiscrimination, designate an employee to coordinate Title IX compliance, and adopt and publish grievance procedures.⁴⁵ It requires that universities conduct prompt, thorough, and impartial investigations into allegations of sexual harassment or violence, regardless of whether a law enforcement agency has opened an investigation.⁴⁶ It suggests that these investigations should occur even in spite of a complainant’s request that the investigation be stopped, in the interest of preventing the alleged incident from reoccurring.⁴⁷ It mandates that schools use the preponderance-of-the-evidence standard when resolving allegations of sexual harassment or violence.⁴⁸ It strongly suggests that an investigation should be completed in under sixty days.⁴⁹ It recommends that universities implement interim remedies—such as a no-contact order or, if need be, an alteration of housing or class-scheduling arrangements—while the investigation is being completed.⁵⁰ And it cautions that schools should “minimize the burden on the complainant” when imposing interim remedies.⁵¹ It strongly discourages mediation in cases of sexual assault and “discourages schools from allowing the parties personally to question or cross-examine each other.”⁵² It requires schools to provide the same benefits and burdens (such as the right to have an advisor present or the right to appeal) to each party.⁵³

The DCL has significantly altered the ways schools handle allegations of sexual harassment and violence. Before the DCL, most schools grouped sexual misconduct with other conduct violations and adjudicated disputes accordingly. Some used the higher clear-and-convincing standard of evidentiary proof.⁵⁴ Some adjudicated sexual misconduct in front of misconduct boards composed of other students, presenting issues of confidentiality and peer pressure.⁵⁵ Some required the complaining student to move out of her dorm or switch out of her classes if she wanted to avoid the accused student, potentially further chilling complaints.⁵⁶ The DCL called for an end to those practices. And it had the effect of requiring each school to develop a bureaucracy specifically designed to adjudicate issues of sexual harassment and assault.⁵⁷

Three years later, OCR issued its newest guidance, a forty-six-page question-and-answer document.⁵⁸ The Q&A contains additional, more specific directives for schools. For example, the Q&A clarifies that a school is considered to be on notice when the victim (who, in the Title IX context, is called the “complainant”) or a third party reports the incident to a “responsible employee.”⁵⁹ It also notes that determinations of whether a hostile environment exists should be made “from the perspective of a reasonable person in the alleged victim’s position.”⁶⁰ Further, it emphasizes that many due process rights for the accused are relaxed, stating that “a Title IX investigation will never result in incarceration of an individual and, therefore, the same procedural protections and legal standards are not required.”⁶¹

The Q&A goes further than the DCL in prescribing how schools interact with complainants. The Q&A strongly suggests that all university employees who might receive reports of sexual misconduct⁶² should be trained in “the impact of trauma on victims,” in “the use of nonjudgmental language,” and in “the potential for revictimization by responders and its effect on students.”⁶³ This recommendation reflects the integration of new research on the neurobiology of sexual assault, which suggests that victims of sexual assault may behave atypically due to trauma.⁶⁴

The integration of this research into OCR policy is a response to the most prominent problem the White House Task Force to Protect Students from Sexual Assault uncovered: that schools’ typical responses to complainants tended to exacerbate, rather than address, the “hostile environment” that Title IX prohibits. Students reported raising complaints of sexual harassment or violence to school officials who responded with “[i]nsensitive or judgmental comments [or asked] questions that focus[ed] on [the] victim’s behavior (e.g., what she was wearing, her prior sexual history) rather than on the alleged perpetrator’s.”⁶⁵ The Task Force cautioned that such responses could “compound a victim’s distress,”⁶⁶ which creates a hostile environment in violation of Title IX.

OCR’s emphasis on training regarding the impact of trauma sends powerful signals to universities, but it also raises a few concerns. The Q&A and the DCL respond to outdated misconceptions about rape, but the combined guidance arguably leads school to infer that they should believe all complaints or risk a finding of noncompliance. Further, OCR’s requirements open the door to the criticism that the agency has required schools to amass an army of social workers, nurses, lawyers, and experienced investigators to operate an investigative and adjudicatory bureaucracy—a function far beyond a university’s traditional role of providing education.

The DCL and Q&A articulate schools’ obligations under Title IX.⁶⁷ They also offer guidelines to schools for best practices to ensure compliance.⁶⁸ And indeed, these two documents led universities to establish Title IX coordinator positions and hire investigators to meet with complainants, respondents, and witnesses and to make factual determinations of responsibility.⁶⁹ But these documents are not the only source of OCR guidance. OCR’s case-by-case applications of its requirements to schools’ policies and procedures similarly supply administrators with guidance.

B. OCR Investigations and Resolutions

The Dear Colleague Letter and the 2014 Q&A have created the current Title IX enforcement mechanism. This guidance has prompted schools to create departments tasked with administering investigations per OCR’s directives.⁷⁰ But OCR’s letters to universities after it completes investigations of those schools’ Title IX compliance also contain directives about how schools should design and implement their respective sexual misconduct policies and procedures.⁷¹ These documents—OCR’s guidance and its public correspondence with schools—do not carry the force of law,⁷² but they effectively form the body of rules schools must follow. This is because schools found not in compliance invariably reach settlement agreements with the Department of Education through the issuance of resolution letters; these disputes are not resolved in court.⁷³ Thus, OCR case resolution letters, written and released at the culmination of an investigation, are similarly authoritative sources of schools’ obligations under Title IX.

There are many case resolution letters that define OCR policy. Since 2011, OCR has completed forty-nine investigations at forty-four institutions of higher learning (some schools were investigated more than once).⁷⁴ In twenty-nine of those investigations, OCR found the school in violation of Title IX, which resulted in a resolution agreement between the agency and the school.⁷⁵

When OCR conducts investigations, it looks at the specifics of a given allegation. The agency interviews the complainant, witnesses, and university administrators to determine if the school was on notice of an incident of sexual harassment or violence and failed to take action reasonably calculated to stop, prevent, and remedy the hostile environment.⁷⁶ OCR also reviews all of the school’s policies and procedures relating to sexual misconduct and, in some cases, conducts focus groups with students to determine whether the university has adequately educated students about its policies.⁷⁷ When OCR has completed its investigation, its lawyers write a case resolution letter,⁷⁸ which informs the university of its determination. Since institutions do not want to risk losing their federal funding, schools found in violation of Title IX settle with OCR.⁷⁹ Settlements are generally resolution agreements in which the university promises to alter its policies and report certain metrics to OCR at certain intervals in exchange for OCR agreeing not to withhold funds from the school.⁸⁰

OCR’s case resolution letters apply the requirements articulated in the DCL and the Q&A. In the press release about OCR’s resolution letter regarding the University of Montana, the agency made clear that it was writing for a broader audience: it called the letter a “blueprint for colleges and universities across the country to take effective steps to prevent and address sexual assault and harassment on their campuses.”⁸¹ In the letter, OCR criticized the school for using a clear-and-convincing evidentiary standard,⁸² failing to impose interim measures,⁸³ lengthening the resolution process by allowing the respondent five separate appeals processes,⁸⁴ halting investigations,⁸⁵ failing to offer students counseling services,⁸⁶ and giving athletes preferential treatment.⁸⁷

OCR’s case resolution letter to the University of Virginia⁸⁸ similarly contains guidance. OCR praised the school for complying with the DCL and Q&A by hiring a dedicated Title IX coordinator, expanding investigative capacity, establishing and filling a prevention coordinator position, enhancing its training and prevention strategies, and developing a website dedicated to disseminating information about Title IX at the University.⁸⁹ The DCL and the Q&A mandate all of these actions.⁹⁰

The significance of the Dear Colleague Letter, the Q&A, and the OCR’s resolution letters cannot be overstated. For activists who have lobbied for stricter enforcement of Title IX, the guidance represents a victory: OCR is taking compliance with Title IX very seriously and has instructed schools that they must investigate all complaints, prevent retaliation against a complainant, and use the preponderance evidentiary standard. But for those who think that Title IX infringes on the First Amendment or due process rights of students accused of sexual harassment or violence, the guidance signifies a drastic expansion of enforcement action based on sua sponte agency interpretations of Title IX that did not go through notice and comment.⁹¹ These critics see “[p]olicymaking by agency threat.”⁹² For now, OCR’s interpretations are effectively binding on all schools receiving federal funds from the Department of Education.

II. The Debate over the Proper Role for Universities

OCR’s increased enforcement of Title IX with respect to sexual assault has generated substantial criticism—specifically, that the resulting investigations carried out by schools are unjust. Significantly, this criticism comes from prominent legal thinkers and scholars who are in a position to influence future OCR policy. Their criticism, which is echoed by organizations that have received financial support from Secretary of Education Betsy DeVos,⁹³ could serve as the basis for the Trump Administration to reverse OCR policy and decline to complete existing or initiate new investigations for failure to comply with Title IX. This backlash poses the question of the proper role for universities in efforts to curtail campus sexual violence. Section II.A argues that universities should maintain a role in investigating complaints of sexual violence on their campuses. Section II.B identifies weaknesses with existing investigation policies and procedures.

A. Universities as Investigators

Universities play an important role in remedying and preventing the conditions that give rise to sex-based discrimination. Universities can place a complainant and an accused student in separate housing facilities or alter their class schedules so that a student who suffered violence as a result of his or her sex will not suffer academically and emotionally, and thus be deprived of equal educational opportunities.⁹⁴ Accordingly, OCR sees sexual violence as a quintessential barrier to educational equity on the basis of sex, and it sees universities as the actors best suited to prevent that violence or deter its collateral effects.

A common response by many university administrators and law professors is that rape is not discrimination; it is a crime and should be adjudicated as such. Janet Napolitano, president of the University of California system, writes, “[T]he federal government’s expectations, especially related to investigations and adjudication, seem better-suited to a law enforcement model rather than the complex, diversely populated academic community found on a modern American campus.”⁹⁵ She notes that colleges cannot possibly investigate sexual violence and assault allegations adequately without subpoena power, the ability to collect and preserve evidence, and specialized (and expensive) training.⁹⁶ Crimes are crimes, and universities should not present themselves as an alternative forum for handling criminal investigations.⁹⁷ Rape allegations are complicated matters, and universities should not put themselves in the position of considering whether a complaint is inspired by regret, remorse, or shame.⁹⁸ One solution is “to reduce the Title IX Office to a compliance-monitoring role, and get it out of the business of adjudicating cases.”⁹⁹

Indeed, there are substantial differences between police investigations and Title IX investigations of sexual assault. Unlike police officers, whose sexual assault investigations usually cannot go forward without the victim,¹⁰⁰ university officials are required to investigate every complaint, even if the complainant asks that the investigation be closed, to determine whether a hostile environment exists or could exist and prevent further harassment or violence.¹⁰¹ Criminal investigations are aided by search warrants and the ability to conduct forensic testing; Title IX investigations rely entirely on evidence produced by the parties themselves.¹⁰² Police investigations use a higher standard of proof when determining whether the suspect violated the statutory definition of sexual assault;¹⁰³ Title IX investigations use the preponderance-of-the-evidence standard and look for violations of the school’s misconduct policy,¹⁰⁴ which is not necessarily aligned to statutory definitions of crimes. Defendants in the criminal justice system may be provided indigent counsel;¹⁰⁵ respondents in a Title IX investigation have no similar guarantee.¹⁰⁶ Criminal investigations may result in prison time; the harshest punishment a university can dole out is expulsion.¹⁰⁷

Rather than allowing two parallel systems to operate, the argument goes, schools should rely solely on the criminal justice system to adjudicate claims of sexual violence.¹⁰⁸ The criminal justice system has actors with the training, resources, and institutional capacity to adjudicate allegations of rape properly.¹⁰⁹ As universities are not adequately equipped to conduct investigations, these institutions should focus on areas within their strength: education and prevention of sexual assault.¹¹⁰

The argument that students should rely solely on the criminal justice system to adjudicate claims of sexual violence is predicated on institutional capacity: that the criminal justice system is best suited to resolve their complaints. But this argument fails to consider the fact that the criminal justice system struggles to prosecute rape,¹¹¹ and that much of the conduct covered by Title IX—such as sexual harassment—does not rise to the level of a crime.¹¹² Additionally, this argument fails to recognize the institutional capacity of schools to protect their students from future and ongoing harm.

As OCR’s guidelines recognize, the school is the entity most capable of addressing sexual harassment and violence on campus.¹¹³ OCR’s increased enforcement activity stems from the premise that schools were not doing enough with the power they already had to address students’ legitimate grievances.¹¹⁴ OCR resolution letters indicate that prior to OCR’s increased enforcement in 2011, schools’ adjudication methods focused more on providing rights and accommodations, including the opportunity to appeal adverse decisions, to the accused student only.¹¹⁵ The DCL was an attempted correction of a preexisting imbalance: it aimed to fix what OCR saw as too much accommodation for the accused student at the expense of a prompt and equitable resolution for the complainant.¹¹⁶ OCR attempted to remedy this situation by requiring that universities provide rights and impose restrictions equally on both parties,¹¹⁷ recognizing that in a Title IX investigation, the party against the accused is not the government but another student who has a legitimate interest in adjudicating her civil rights claim. And what is at stake is protection against ongoing discrimination, rather than criminal justice.

Schools—not police or prosecutors—are uniquely positioned to respond to and prevent behavior that creates a hostile environment on campus. They have an obligation to do so,¹¹⁸ but, moreover, they should do so because of their ability to address the specific issue facing a complainant—the inability to obtain an education free from sex discrimination—and to impose remedies or consequences that solve that problem. Schools are not simply an alternative, parallel forum for adjudicating rape claims. The university has greater control over the educational environment than does any other actor—certainly more than the police. It can remedy the hostile environment with interim or permanent measures that reduce the impact of the incident on the complainant’s educational experience, while imposing the least restrictive sanctions on the respondent so that he may also enjoy his full educational experience.¹¹⁹

OCR has carved out a vital role for schools to address the concerns of students who want the harassment or violence they face to stop but do not want to participate in a criminal proceeding. This is not an uncommon concern; indeed, 65 percent of rapes and sexual assaults go unreported to the police.¹²⁰ On college campuses, the numbers are even worse: under 5 percent of sexual assaults and attempted sexual assaults are reported to the police.¹²¹ There are many reasons why the reporting rate for rape is so low: victims wonder if what happened to them qualifies as sexual assault,¹²² worry they will not be taken seriously by police officers,¹²³ experience shame and embarrassment, and do not want to discuss the assault publicly or testify in open court.¹²⁴ In the college setting, rape victims often know their attacker¹²⁵ and, despite the attack, do not want to subject him to incarceration.¹²⁶ They simply want to attend class or use the bathroom in the hallway of their dorm without having to interact with their attacker. As OCR notes, a victim of sexual assault who is then forced to face the perpetrator of that assault in the course of her educational activities will not gain full enjoyment of those educational opportunities.¹²⁷ These are problems a school is uniquely situated to solve.

Critics respond that universities are in a poor position to carry out fair investigations. Critics note that OCR’s guidance around the development of Title IX investigative processes has created a strong presumption against the accused student. Nancy Gertner, a Harvard law professor and former federal judge and criminal defense attorney, sums up the concerns about Title IX investigation procedures—Harvard’s in particular—shared by many of her colleagues:

[T]his procedure does not remotely resemble any fair decision-making process with which any of us were familiar: All of the functions of the sexual assault disciplinary proceeding—investigation, prosecution, fact-finding, and appellate review—are in one office . . . and that office is a Title IX compliance office, hardly an impartial entity. This is, after all, the office whose job it is to see to it that Harvard’s funding is not jeopardized on account of Title IX violations, an office which has every incentive to see the complaint entirely through the eyes of the complainant.¹²⁸

Gertner argues that the preponderance evidentiary standard (which is lower than the beyond-a-reasonable-doubt standard required in criminal prosecutions), has effectively created a presumption in favor of the complainant—a presumption heightened even more by the degree to which universities are being closely watched by OCR and the media.¹²⁹ The media, in amplifying stories of victims of sexual assault, has put “pressure on schools to hold students responsible for serious harm even when [evidence is inconclusive].”¹³⁰ Schools’ focus on investigating complaints of sexual assault when both parties were intoxicated similarly exemplifies the presumption in favor of the usually female complainant: as Janet Halley argues, even when both parties voluntarily consumed intoxicants, universities are far more likely to see alcohol as a factor that clouded the female’s ability to give consent.¹³¹ Voluntary cointoxication, then, provides the female with a cause of action and the male with no defense.¹³²

Critics further see a presumption in favor of the complainant in universities’ adoption of trauma-informed training at OCR’s recommendation.¹³³ By training Title IX investigators on the lower evidentiary standard and on research that shows sexual assault victims may retell their stories atypically and should not be disbelieved for doing so, universities have trained their investigators to always believe complainants, “precisely when they seem unreliable and incoherent.”¹³⁴

These criticisms suggest that universities have no appropriate role in addressing sexual assault on college campuses. President Trump’s surrogates have echoed these critiques.¹³⁵ Yet, their criticism belies the vital role schools play in combating sexual violence. Schools have the ability to change the culture on their campuses in a way that the criminal justice system cannot.¹³⁶ Therefore, action or inaction by school officials can affect the level of sexual misconduct on a campus. When young men see their peers face meager or no sanctions for incidents of sexual harassment or violence, campus rape no longer seems as taboo to them.¹³⁷ The lack of accountability for perpetrators of campus sexual assault also has a chilling effect on victims who are less likely to report incidents of violence if they believe that the perpetrator will face no consequences.¹³⁸

Yet, so many of the criticisms of Title IX investigations evoke comparisons with criminal proceedings. This is a critical problem with current Title IX investigations: OCR sees them as civil disputes, and critics see them as quasi-criminal proceedings. In effect, both are right. At issue in a Title IX investigation is whether the complainant has had her right to remain free from sex harassment abridged. She files the complaint with her school through its grievance process, having already suffered an injury, and seeks a remedy for her injury. If she is successful, however, she will not receive the type of civil remedy she would were she to bring the claim in court under Title VII or Title IX; she will not be awarded damages or back pay or a remedy similar to employment reinstatement.¹³⁹ Her remedy will often come directly at the expense of the respondent, who will see his own rights curtailed. He may be forced, even as an interim measure, to move out of university housing or to withdraw from certain classes or to avoid a certain dining hall during certain periods of time. He may be suspended or expelled from school.¹⁴⁰ He may be rendered ineligible for certain honors.¹⁴¹ And as some states—like New York and Virginia for now—begin to pass legislation requiring schools to note on a student’s transcript whether the student was suspended or expelled for sexual misconduct, he may face severe restrictions, similar to being put on a sex offender list, that curtail his ability to gain a higher education degree.¹⁴²

But a Title IX investigation is not a criminal investigation. It imposes academic consequences for violations of an academic regulation, and it intends to preserve the complainant’s right to an education free from discrimination—a right that has been abridged by the actions of another student.¹⁴³ Furthermore, Title IX adjudications protect students from harmful behavior, like harassment, that may not constitute a crime.¹⁴⁴ OCR’s role in overseeing Title IX enforcement is essential: it does what the Department of Justice and state prosecutors cannot do by protecting students from conduct that may not constitute a crime or that cannot be proven with admissible evidence.¹⁴⁵ Rather than recede into a “compliance-monitoring role,”¹⁴⁶ schools should simply fix the problems with the way they conduct their investigations.¹⁴⁷

B. Investigative Procedures and Students’ Due Process Rights

OCR’s obligations have spurred schools to create quasi bureaucracies to adjudicate complaints of sexual violence, and these creations have generated significant backlash. OCR dictates the process through which schools must carry out investigations and has directed schools to revise their procedures in order to conform to OCR’s very specific guidelines.¹⁴⁸ Through the DCLand Q&A, OCR has instructed schools to use the preponderance-of-the-evidence standard¹⁴⁹ when adjudicating cases arising under Title IX and has continued to remind schools under investigation that, according to OCR’s interpretation of Title IX, preponderance of the evidence is the only appropriate evidentiary standard.¹⁵⁰

OCR’s justification for the standard is twofold. First, the preponderance-of-the-evidence standard has always been the appropriate standard for a civil adjudication.¹⁵¹ Second, the DCL and subsequent documents suggest that universities, when operating under a higher evidentiary standard, overwhelmingly failed to find sufficient evidence that sexual harassment or violence—offenses that tend not to produce witnesses or concrete evidence—took place.¹⁵² OCR’s recommendations and modifications, then, represent attempts to make Title IX investigations more equitable for the complainant and the respondent.

For complainants, these policies have been favorable, removing the burden to prove assertions by a higher standard than in a civil trial. But requiring universities to use the preponderance-of-the-evidence standard simply because that is the standard used in civil actions may go too far, particularly when adjudications concern conduct that meets the statutory definition of a crime. OCR has also informed schools that they need not provide to an accused student “the same procedural protections and legal standards” as a court would provide to a criminal defendant since “a Title IX investigation will never result in incarceration of an individual.”¹⁵³

Both of these specific instructions have attracted significant criticism. In July 2014, Harvard University adopted a new university-wide sexual misconduct policy that closely followed OCR’s recommendations¹⁵⁴ and was criticized for adopting the preponderance evidentiary standard. Jacob Gersen and Jeannie Suk call the standard an “invention” of the DCL.¹⁵⁵ Law professors at the University of Pennsylvania criticize the standard as unduly harsh as it “requires a finding of responsibility even if the fact finder is almost 50% sure that the accused student is not guilty.”¹⁵⁶ Jed Rubenfeld cautions that this lower standard¹⁵⁷ can make “[m]istaken findings of guilt . . . a real possibility.”¹⁵⁸ The American Association of University Professors criticizes the standard as applied to cases of harassment accusations against professors. It notes that “accusations of harassment and sexual violence . . . even false ones, [have the potential] to ruin a faculty member’s career”¹⁵⁹ and argues that a higher standard of proof is necessary given the given the severity of the consequences to the accused.¹⁶⁰ This pronouncement could just as easily refer to a student’s academic and budding professional career. Despite this criticism from Harvard, Yale, and Penn professors, it is worth noting that almost all schools that identified a standard of proof in their sexual misconduct codes before issuance of the DCL, with the exception of schools in the Ivy League, used the preponderance-of-the-evidence standard.¹⁶¹

The preponderance-of-the-evidence standard bothers many critics precisely because it is so different from the beyond a reasonable doubt standard the accused would face if on trial for criminal sexual assault.¹⁶² Indeed, there are many other ways in which Title IX proceedings provide fewer protections for the accused than would a criminal trial. A Title IX respondent is not provided indigent counsel,¹⁶³ is not necessarily allowed to discover evidence against him, and is not allowed to confront the complainant.¹⁶⁴ In October 2014 and February 2015, law school professors from Harvard and the University of Pennsylvania, respectively, penned open letters criticizing the lack of due process protections for students accused of sexual harassment or violence under Title IX. Both letters noted that OCR discourages schools from allowing the respondent to confront the complainant (since OCR believes such a confrontation could easily retraumatize a victim of sexual assault), which the letters claimed violate the individual’s constitutional right to confront his accuser.¹⁶⁵ OCR also requires that universities conduct their investigations promptly, even if that requires the university to complete its investigation before the police have completed theirs.¹⁶⁶ University investigations, of course, must be on a short time frame since students move away most summers and graduate within a few years. But the University of Pennsylvania letter raised the concern that respondents who are also defendants in a criminal investigation covering the same conduct might be forced, in order to defend themselves, to make statements during the Title IX process that could then compromise their criminal defense.¹⁶⁷ The open letter from Harvard law professors criticized any adjudication without the aforementioned protections as “lack[ing] the most basic elements of fairness and due process.”¹⁶⁸

In the eyes of these critics, the Department of Education has spurred universities to create a series of “kangaroo courts” tasked with investigating sexual assaults that virtually require that complainants be believed, and that respondents be denied the opportunity to defend themselves.¹⁶⁹ A redesigned Title IX investigative system must address these critiques. For Title IX investigations of sexual harassment and violence to be viewed as legitimate, they cannot give off the perception that they place accused students in untenable and indefensible positions.

III. Maintaining School-Based Investigations While Placating Concerns of Bias or Violations of Due Process Rights

Sexual harassment and violence on college campuses have the potential to ruin victims’ educational experience, and Title IX investigations of the offending conduct play an essential role in both remedying harm done to the complainant and preventing the respondent from committing similar acts in the future.¹⁷⁰ Universities should not eschew their Title IX responsibilities and leave all investigative responsibility to the police, for reasons described above. But for these investigations to be respected, they must become fair: they must not give off the appearance of bias or suggest that the school has violated the accused student’s rights to a fair proceeding.

This Part argues that Title IX investigations should be restructured, not eliminated, in response to criticism, and proposes ways to maintain OCR enforcement and school-based investigations, while eliminating the elements that raise legitimate and pressing criticism. This Part proposes two ways for schools to restructure Title IX investigations—by outsourcing the fact-finding component to specialized investigative centers and by using a higher evidentiary standard for cases in which a student is accused of conduct that could also be a felony—in order to address prevailing criticism.

A. Outsource Fact-Finding to Investigation Centers

Universities are uniquely equipped to remedy and prevent harm resulting from sexual violence,¹⁷¹ but they simultaneously need investigative help. At present, universities tend to investigate complaints through one of two models, each with its own flaws. Rather than use either of these methods, which raise concerns of unreliability and bias, schools should outsource the fact-finding portion of their investigations to specialized investigation centers.

Title IX investigations evoke comparisons with criminal investigations because an accused student is tried for conduct that violates both university policy and, in cases of sexual violence, the law. At some campuses, this “trial” takes place in front of a panel of investigators who ask questions and hear from witnesses called by the party.¹⁷² This panel may allow students to present remarks; a representative of the school’s Title IX investigation office may also present to this panel his or her opinion on the facts and the credibility of the parties’ accounts of the case based on earlier conversations with the complainant and respondent.¹⁷³

Many schools have tried better ways to conduct their investigations. Some schools, including those that have resolved complaints with OCR,¹⁷⁴ have adopted the single-investigator model of investigation.¹⁷⁵ Under the single-investigator model, a single, trained member of the university’s Title IX investigation office conducts in-person interviews with each of the parties, reviews evidence, meets with witnesses, and prepares a report detailing his or her determination of the credibility of each party’s account.¹⁷⁶ The report is then reviewed by both parties and by the Title IX coordinator and is then adopted as the final determination of whether the university’s policy was violated.¹⁷⁷

The single-investigator model has both administrative and substantive benefits. Single investigators develop expertise in the areas of Title IX and of conducting sensitive interviews, and thus are more skilled than the average panel member at making credibility determinations.¹⁷⁸ Moreover, an investigation performed by one person can be completed more quickly because of the scheduling ease the model offers over the hearing-panel model.¹⁷⁹ Single investigators can conduct in-person interviews in unobtrusive ways, such as in an office or in a space convenient to the party or witness.¹⁸⁰ These interviews are not only unlike a formal hearing panel but also so different from criminal justice proceedings that they hardly lend themselves to comparison.

Despite these benefits, the model has drawbacks. Single investigator–run investigations, by placing the ultimate decision of responsibility in the hands of one individual, may give off the perception of unfairness. The model opens the door to respondents blaming an adverse decision on a personality conflict¹⁸¹ or to Gertner’s concern that one individual holds the power of the judge, jury, and executioner.¹⁸²

To alleviate concerns of potentially biased or inappropriate investigations, while preserving the benefits of expertise and of a procedure that looks unlike a criminal justice investigation, universities should borrow from the method used to investigate child sexual assault. In many jurisdictions, regional child advocacy centers operate to provide careful investigations of allegations of sexual abuse of children.¹⁸³ These centers employ psychologists, psychiatrists, counselors, and social workers, all who are trained in talking to children about possible sexual trauma; these centers coordinate their respective services with those of law enforcement officials.¹⁸⁴ To be clear, campus sexual assault and child sexual abuse are different issues. The issue in Title IX investigations is often whether consent was given,¹⁸⁵ which is moot when child abuse is at issue because children are legally incapable of giving consent¹⁸⁶—but the model presents a useful paradigm for adjudicating sexual assault cases.

Investigation centers solve many of the problems presented by the panel and single-investigator models. They allow for professional investigations of complaints of sexual harassment or violence by a team with the experience and competence to make an accurate credibility determination.¹⁸⁷ They provide the resources to conduct investigations promptly.¹⁸⁸ And they allow the investigators to reach a decision without considering repercussions to the university.¹⁸⁹ These centers would be able to conduct forensic investigations, leaving universities to focus on providing support services to the complainant and the accused.¹⁹⁰ Universities would contract with investigation centers to conduct the fact-finding part of investigations, and centers would be able to perform investigations for multiple schools, which would encourage conversations about best practices between campuses.¹⁹¹

The idea of outsourcing investigations is not new. Universities already hire external counsel and consultants to recommend changes to their sexual misconduct and grievance policies and audit their own Title IX compliance. The White House Task Force, too, suggested outsourcing: specifically, that universities prepare memoranda of understanding to memorialize partnerships between schools and rape crisis centers so that the centers can provide students—particularly at smaller schools¹⁹²—who have experienced sexual assault with the necessary medical and psychological care.¹⁹³ In addition, two former prosecutors who currently consult with universities on Title IX disputes have advocated for the regional investigation-center model.¹⁹⁴ They note that regional centers can coordinate care between clinicians, law enforcement officials, and educational institutions to provide adequate care while allowing schools to avoid the perception that university administrators are biased and make mistakes to protect their institutions.¹⁹⁵

Under this model, the independent centers would make fact-finding determinations and recommendations of responsibility and sanctions, but the school’s Title IX coordinator or hearing panel would make the ultimate determination of responsibility and appropriate sanctions on the basis of the center’s recommendation. This system would allow schools to maintain control over the application of the proper evidentiary standards. To deviate from the recommendations, the Title IX coordinator would need to provide justifications, which would be subject to OCR review if the school were to be investigated. This would discourage deviation for improper reasons. This model would not undermine the Title IX coordinator’s authority since he or she would serve as a quality check on the work done by the independent centers. Title IX coordinators could refuse to adopt inaccurate findings and even terminate contracts with centers for inadequate work. Further, regional centers would have the capability to preserve evidence in case the complainant were to report the incident to the police.

The regional-center model would not require any new guidance from OCR in order to be implemented. Under OCR’s current position, schools must oversee Title IX investigations but can hire independent contractors to conduct the investigations.¹⁹⁶ A shift to the regional-center model would require geographic buy-in to make it financially sustainable, but would not require new policies to take effect. It is a simple solution that would promote thorough, experienced investigations and mitigate concerns of bias.

B. Evidentiary Standards

Furthermore, to address criticisms that OCR has forced schools to curtail respondents’ rights, OCR and the schools it regulates should tweak the current standards for evidentiary findings. The DCL and the Q&A require that schools investigate complaints of sexual harassment or violence under the preponderance-of-the-evidence standard.¹⁹⁷ This current standard addresses the concern that allegations of sexual misconduct are hard to prove under any evidentiary standard.¹⁹⁸ But it does not, as a rule, adequately balance the needs of victims with those of accused students. Preponderance of the evidence is the typical civil evidentiary standard, but perhaps it is too low of a bar for a process intended to determine whether an individual is personally responsible for committing an act of sexual harassment or violence. This concern is especially weighty when the low evidentiary standard is used to assign consequences that may follow the respondent for life.¹⁹⁹

OCR imposes the preponderance-of-the-evidence standard because it is the civil evidentiary standard. But preponderance of the evidence should not apply in all situations. Instead, universities should bifurcate the related questions: one of responsibility for the conduct, and the other of the presence of a hostile environment. Title IX investigators should use the preponderance-of-the-evidence standard when determining whether the accused student engaged in conduct that was sufficiently severe, persistent, or pervasive to create a hostile environment, and they should impose sanctions short of expulsion or suspension for such a finding. An investigation into an act or pattern of sexual harassment would fall under this standard, as would questions about the presence of a hostile environment before and after an alleged sexual assault. But when determining whether the student is responsible for an act of sexual violence, investigators should use the clear-and-convincing standard of proof. This would tie the civil standard to the civil action—the deprivation of an opportunity to fully enjoy the benefits of the educational institution because of the hostile environment—but would require a stricter standard for the question that has the ability to impose lifelong consequences on the respondent.

A school’s Title IX obligation is to protect its students from hostile environment created by severe, persistent, and pervasive conduct on the basis of sex.²⁰⁰ A school does this by preventing and remedying such conduct. Bifurcating the findings allows schools to respond to the complainant and the accused individually. Schools can separate the question of personal responsibility for acts of sexual violence from the question of whether a victim has been given the resources he or she needs. If an investigation does not lead to a finding of responsibility, schools can still provide resources to complainants who experience a hostile environment. If a complainant reports an incident of sexual harassment or violence, the school cannot prevent the incident, but it can remedy the situation through the imposition of interim measures²⁰¹ without even conducting an investigation.²⁰² A finding that the accused student engaged in severe, persistent, or pervasive conduct on the basis of sex that created a hostile environment would allow the school to remedy the situation by making the interim measures permanent and imposing other academic consequences (e.g., completion of educational programs on consent) to prevent the student from committing similar offenses in the future.²⁰³

There is precedent for using a lower evidentiary bar to determine whether one has created a hostile environment that is sufficiently severe, persistent, or pervasive. Since fostering a hostile environment is, by definition, a civil rights violation,²⁰⁴ it makes sense that the civil standard would apply. In fact, the behavior that would lead a university to conclude that an accused student has created a hostile environment is the same behavior that would allow a court to issue a domestic violence protective order.²⁰⁵ And all fifty states use either preponderance of the evidence or a lower evidentiary standard (such as “discretion of the court based on good cause”) when determining whether to issue a protective order.²⁰⁶

Universities would still need to use the clear-and-convincing standard to hold individuals responsible for acts of sexual violence—that is, acts that may meet the statutory definitions of crimes and that can result in the imposition of sanctions like suspension and expulsion. To address the concern that such a finding could be used against a student in the event the student is criminally prosecuted after the school makes its determination, the finding could include the caveat that it is based on evidence inadmissible in a criminal proceeding (e.g., statements made by the accused student without the presence of counsel) and that it is based on a lower evidentiary standard. The clear-and-convincing evidentiary standard would satisfy critics who worry about accused students’ due process rights by placing the evidentiary burden on the complainant before imposing sanctions with permanent consequences.

Furthermore, using the higher evidentiary standard for questions of personal responsibility for sexual violence would address the concerns of critics who fear that respondents are unfairly punished or even that accused men have become the new population most victimized as a result of sex-based discrimination. A higher evidentiary standard would allow OCR to validate complainants’ allegations without raising questions about sham proceedings. Moreover, having two evidentiary standards would help clarify which activities actually violate Title IX. By forcing an analytical separation between sexually violent conduct and the creation of a hostile environment, universities and their students will gain a better understanding of the types of behavior that actually violate the law.

In many ways, this proposal of two evidentiary standards mimics the longstanding distinction between criminal and tort liability. An individual charged with murder gains the benefit of the beyond-a-reasonable-doubt standard, and, if convicted, faces permanent sanctions (e.g., incarceration, a felony conviction, and the loss of rights that stems from it). That same individual, if sued in a wrongful death suit, would have his responsibility determined under a preponderance-of-the-evidence standard. If found responsible, he would have to pay a sum of money in order to return the decedent’s heirs to as similar a position as possible to that which they held before the incident.²⁰⁷

Severing the question of responsibility for committing sexual violence against another student from the question of responsibility for creating a hostile environment for another student because of her sex fits this well-established pattern. It distinguishes between the complainant’s right to receive educational services on the one hand and alleged violations of the student conduct code on the other. It allows schools to use the civil evidentiary standard to answer the question of whether a civil right was denied, while recognizing that adjudicating responsibility for an act that could constitute a crime requires a higher threshold. And finally, it promotes fair process by allowing a lower evidentiary standard for a question that can only result in academic sanctions (none of which abridges rights to which the accused student is entitled) and by asking the school and the complainant to meet a higher burden before imposing consequences that could permanently affect the accused student’s academic and professional career.

To effectuate this change, OCR will need to release new guidance restating its evidentiary requirements for Title IX investigations. There is reason to believe the incoming Trump Administration, whose surrogates have expressed distaste with OCR’s handling of sexual assault investigations, will issue new guidance.²⁰⁸ Rather than eliminate OCR’s vital role in responding to and eliminating the pressing problem of campus sexual harassment and violence, the new administration should carve out protections for accused students and take measures to ensure that resulting investigations are just, fair, and legally sound.

Conclusion

OCR has played a commendable role in drawing increased attention to the obstacles sexual harassment and violence can place in front of one’s ability to obtain an education and advance in an academic field. In response to these problems, OCR has designed a process to hold schools accountable for maintaining a campus free from gender discrimination.

OCR’s responses have garnered extensive criticism from academics and lawyers who worry that the process unfairly targets and punishes men for such conduct without affording them sufficient rights. The Trump Administration and its surrogates echo these concerns and have gone as far as to call for the elimination of OCR enforcement of Title IX. But criticisms about overextending university staff and violating due process rights do not justify halting OCR enforcement or removing university oversight of the adjudication process. Instead, by tweaking aspects of Title IX investigations to address those criticisms, OCR can maintain fair and just enforcement of Title IX.

* J.D., May 2017, University of Michigan Law School. I would like to thank Professor Sam Bagenstos and Rebecca Leitman Veidlinger for their guidance and feedback. I would also like to thank my parents, Sophie, Manfred, and the staff of Volumes 115 and 116 of the Michigan Law Review.