You Are Invited to Comment on Proposed Regulations
Posted by On Monday, June 23, 2014

On Friday, June 20th — nearly fifteen months after the Violence Against Women Reauthorization Act of 2013 was signed into law — the Department of Education published the proposed regulations to implement the Campus SaVE Act and other amendments to the Clery Act in the Federal Register. Comments are due in 30 days — on July 21, 2014 — and the regulations are expected to become final around November 1, 2014, with an estimated effective date of July 1, 2015.

While the ED points out the VAWA amendments to the Clery Act do “not affect in any way” Title IX compliance, it should also be noted that the proposed regulations are not entirely consistent with Title IX requirements. For example, the standard of evidence used in disciplinary proceedings involving sexual assault must be disclosed in an institution’s Annual Security Report but the regulations do not specify what that standard of proof should be. The ED points out, however, that schools “can comply with Title IX and the Clery Act by using a preponderance of evidence standard.” In other words, if you use another standard you’ll violate Title IX (see the ED Office for Civil Rights’ significant guidance document Questions and Answers on Title IX and Sexual Violence), but nothing in the proposed regulations says you have to use the preponderance of evidence standard.

Under the proposed regulations, descriptions of these procedural requirements for disciplinary proceedings will also need to be included in the ASRs due on October 1, 2014:

  • the different types of investigations and hearings used for dating violence, domestic violence, sexual assault, and stalking cases
  • the steps, timelines, and decision-making process for each type of proceeding
  • how the school decides which type of proceeding to use in a particular case

Again, the proposed regulations don’t spell out what these procedural requirements should be, but schools should look to the OCR’s Q&A for guidance on these issues.

The rulemaking committee also debated whether the whole list of possible sanctions for accused students and protective measures for complainants should be disclosed in the school’s ASR. The argument for transparency won so that schools would be required to disclose an “exhaustive list of sanctions” against students found responsible for misconduct. Whereas schools would only be required to disclose a range of protective measures that could be used to protect a victim’s confidentiality, which preserves the school’s flexibility to address safety issues.

While the rulemaking committee reached consensus on these proposed regulations, the ED is especially interested in hearing ideas on how to resolve questions about reporting Clery crime statistics in the ASR like these:

  • where does a stalking incident end and another stalking incident begin?
  • how do you report a continuing stalking incident that spans more than one year or occurs on more than one campus?
  • should information about incidents of Clery crimes include information about the relationship between the perpetrator and victim?

While the regulations are fairly comprehensive, the ED intends to provide “further clarification and guidance” on issues not addressed in the regulations, such as consent, and to help schools better understand these regulatory requirements.

If you want to have a voice in shaping the rules on any issue covered in the proposed regulations, submit your “constructive, information-rich” comments before 11:59 ET on Monday, July 21, 2014, following these “Tips for Submitting Effective Comments“:

  • comment on issues that are of most concern to your institution
  • cite expertise, experience, or data that supports your position
  • offer constructive criticism or support on a particular rule
  • suggest an alternative approach and explain why it would be more effective
  • offer examples of negative or positive results from the proposed rule
  • provide quantitative or qualitative data on the economic effects of the rules
  • address opposing points of view

Comments can be submitted online and are available for public viewing on

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A Checklist for Title IX Employee Training
Posted by On Thursday, May 15, 2014
A Checklist for Title IX Employee Training

White House Task Force Tells Victims “You’re Not Alone”
Posted by On Friday, May 2, 2014

This week the Obama administration took unprecedented steps to address the problem of campus sexual violence. The First Report from the White House Task Force to Protect Students From Sexual Assault, titled “Not Alone,” echoes President Obama’s message to victims and survivors:

Perhaps most important, we need to keep saying to anyone out there who has ever been assaulted: you are not alone. We have your back. I’ve got your back.

On the same day the Task Force report came out, the Department of Education’s Office of Civil Rights issued a new set of guidelines for Title IX compliance. This week the OCR also released a list of 55 schools that are currently under investigation by the OCR for possible Title IX violations. This sends a strong message to colleges and universities across the country to make their compliance efforts a top priority.

This post will focus on the White House Task Force report. Besides acknowledging areas that require research and further study to determine what works, the Task Force report recommends the following best practices for schools to focus on:

  • Campus Climate Surveys: Developing a comprehensive prevention program is an ongoing process. To determine the unique needs of each campus and to measure a particular program’s success, schools need to gather data on the incidence of sexual assault occurring on their campuses and assess the campus climate among students, faculty, staff, and administrators. The Task Force recommends that schools administer an annual survey in the winter or spring to gather this information and provides guidelines for conducting the surveys. In 2016, the administration will explore legislative or administrative mandates requiring schools to conduct annual campus climate surveys.
  • Prevention programs: Given that evidence on effective campus sexual assault prevention methods is limited, the Centers for Disease Control will solicit research proposals in 2015 to inform sexual violence prevention efforts. Until then, the best practice is for campuses to provide continuing and universal prevention education for all students. Specific training requirements are found in the Campus SaVE Act education program requirements and the OCR’s “Questions and Answers on Title IX and Sexual Violence.”
  • Employee Training: The Task Force emphasizes that the first person a victim talks to should be able to provide a victim with information about available resources and services, how to access confidential support, and how to navigate the school’s disciplinary process. Identifying victim advocates who can provide confidential emergency and ongoing support for victims and survivors is deemed a “key best practice.”
  • Reporting and Confidentiality Policies: The Task Force acknowledges that responding to reports of sexual assault while maintaining a victim’s request for confidentiality is a difficult balancing act. However, it is critical that victims get the support they need and schools adequately respond to the situation. The purpose of the report’s suggested policy language is to make students aware of their options for reporting or making confidential disclosures of sexual violence. The Task Force also promises to provide additional sample language on “several challenging areas” by September 2014.
  • Sexual Misconduct Policies: While a school’s sexual misconduct policies must reflect “the unique aspects of the institution and its student body,” the Task Force provides a checklist of important considerations when drafting policies that effectively address prevention, reporting, and responding to sexual misconduct.

Key elements of the Task Force’s recommended victim-services plan are to either provide comprehensive trauma-informed services on campus or partner with community-based organizations to make crisis intervention services available 24 hours a day. In addition, when reports involve criminal investigations there needs to be communication, cooperation, and coordination among campus security, local law enforcement, and victim support groups to make investigations and adjudications more efficient while supporting the victim’s recovery.

Some schools are experimenting with new ideas for investigating and adjudicating sexual assault cases. The Justice Department’s Office on Violence Against Women will begin assessing different models and identifying promising practices in October 2014. Holding offenders accountable is another area where research is “desperately lacking.” The DOJ is now seeking grant applications under its Campus Assault Perpetrator Treatment Pilot Project to gather information on current campus sanctions for sexual assault perpetrators, and to develop and test sexual offender treatment programs.

Finally, the report announces a new website — — which provides data and resources for schools, victims, and survivors. For victims and survivors, the website explains how to file a complaint with the OCR and the DOJ against schools for Title IX violations. For schools, the website explains the reporting requirements of the Clery Act and Title IX in sexual assault cases, and how FERPA applies to those obligations. There is also a school-by-school enforcement map, providing links to resolution agreements and court filings addressing Title IX and Clery Act compliance investigations.

If that wasn’t enough information to process, in future posts we’ll help you understand the OCR’s new guidelines and how to put together a prevention program that addresses both the requirements of the Task Force’s best practices and the OCR’s guidelines.

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Do Accused Students Have the Right to Legal Representation?
Posted by On Tuesday, April 15, 2014

While the final Rulemaking session on the Campus SaVE Act has ended, and the committee has reached a consensus on draft regulations, that consensus was reached far more easily for some parts of the regulations than for others. For example, when it came to the provision on disciplinary proceedings the committee didn’t have much trouble agreeing on the definition of an “advisor” as someone who provides “support, guidance, or advice” to the accuser or accused, and that schools would be required to:

(iii)  Provide the accuser and the accused with the same opportunities to have others present during any institutional disciplinary proceeding, including the opportunity to be accompanied to any related meeting or proceeding by the advisor of their choice …

However, when the discussion turned to the role these advisors could play there were “a few tense exchanges” between campus and student representatives regarding whether attorneys could represent students at the hearings. The committee finally agreed that schools could not limit the students’ choice of advisor but could limit the advisor’s participation in the proceedings, “as long as the restrictions apply equally to both parties …”

If this language makes it into the final regulations it may raise other issues that will need to be addressed. For example, North Carolina passed a first-of-its-kind law last year that gives students at public universities the right to have a lawyer present their case when they face disciplinary proceedings (other than a student honor court) for code of conduct violations other than academic dishonesty.

The North Carolina law, however, potentially conflicts with the draft federal regulations. Will federal law preempt state law if a university decides to limit the attorney’s participation? What happens when a student cannot afford legal representation? The draft regulations require that the accused and accuser must have the same opportunity to be represented by counsel of their choice. Does that mean the university must provide counsel to the accused or accuser if one of the parties cannot afford an attorney?

Another issue raised by the draft regulations is whether the school must advise accused students of their right to have an attorney present before being questioned during the school’s investigation. The draft definition of “proceeding” includes investigations as well as formal and informal meetings:

(iii) Proceeding means all activities related to a non-criminal resolution of an institutional disciplinary complaint, including, but not limited to, fact-finding investigations, formal or informal meetings, and hearings.

Therefore, it appears that this draft regulation requires both the accused and the accuser to be provided with the opportunity to have an attorney or other advisor present during questioning by school investigators, which goes beyond what is required in a criminal investigation.

Miranda warnings are required when a criminal suspect is in the custody of a sworn police officer. This protects someone who has either been arrested or is in a situation where they reasonably feel like they are not free to leave. Under these circumstances, suspects must be advised of their right to remain silent and to consult with an attorney before being interrogated.

However, if a student is being questioned by a campus authority who is not a sworn police officer, this is not a Miranda situation. This issue came up in a lawsuit against Denison University where the accused student claimed that the university violated his legal rights when Denison’s security director interrogated him without telling him that he had the right to have an attorney present. The student was expelled from the university after being found responsible for sexual assault. The lawsuit settled so we don’t know how the court would have decided this issue and it remains an open question.

While legal representation will increase the appearance of fair and impartial proceedings and increase students’ confidence in the process, it may also blur the lines between student conduct hearings and courts of law. Hopefully, the Department of Education will clarify the distinction between these two proceedings.

The draft regulations now go to the Office of Management and Budget for approval. The OMB’s approval is expected by the end of April, at which point the proposed regulations will be published in the Federal Register, followed by a 45-day public comment period. We’ll be following the process to the final regulations and keep you posted.

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Counting New Crime Statistics
Posted by On Tuesday, March 25, 2014

In the Fall of 1962, President Kennedy sent U.S. Marshals to the University of Mississippi to protect James Meredith, the first African-American student to matriculate at “Ole Miss,” as he faced a riot aimed at stopping him from entering the Oxford campus. Today, nearly a quarter of the university’s students are minorities and a statue of Meredith has been erected as a symbol of the university’s progress.

Sometime during the early morning hours of February 16, 2014, Meredith’s statue was defaced. A noose was tied around its neck and a Georgia state flag with the Confederate battle symbol was draped over its face. Three freshmen were implicated and expelled from their fraternity, while the university is proceeding with disciplinary action. In addition, the FBI is investigating the incident to determine if this was a hate crime intended to intimidate African Americans.

Racially motivated hate crimes are not confined to southern states.  At San Jose State University in California, an African-American freshman was subjected to “disturbing racial indignities” by his white roommates, including fastening a bicycle lock around his neck and displaying the Confederate flag in their dorm room. The victim has filed a $5 million claim against the university, alleging that the dormitory adviser ignored warning signs of a potentially dangerous situation, and four of the roommates have been charged with hate crimes and battery.

Both cases remind us not only that ugly prejudices still exist on today’s college campuses but also that hate crimes such as these are covered by the Clery Act’s reporting requirements. The Clery Act requires every postsecondary school that participates in federal student aid programs to prepare an Annual Security Report that is made available to enrolled and prospective students. These reports provide information about campus safety so that students and their families can make informed decisions about where to pursue higher education. The “Clery crimes” that must be reported range from murder and sexual assault to auto theft and arson.

Effective October 1, 2013, the Violence Against Women Reauthorization Act of 2013 amended the Clery Act reporting requirements. Prior to October 1, 2013, the Clery Act defined hate crimes as those that involved prejudice based on race, gender, religion, sexual orientation, ethnicity, and disability. Starting with the Annual Security Reports due on October 1, 2014, hate crime statistics include two additional types of prejudice: national origin and gender identity.

Hate crime statistics also include these crimes which are not reported under other categories: intimidation, larceny-theft, simple assault, and crimes involving property damage and personal injury. It should be noted that the VAWA of 2013 added these new Clery crimes, which would also be reported as hate crimes if they were motivated by prejudice: sexual assault, domestic violence, dating violence, and stalking.

The new reporting requirements are raising questions about how to count these crimes, and the Department of Education’s Rulemaking Committee is working on regulations to explain compliance, addressing issues such as how to:

  • define the new crimes
  • count and disclose statistics for these offenses

One of the subcommittees has posted Issue Paper #1, which describes the current discussion around how to define new offenses. For example, it is unclear what definition of sexual assault should be used since the FBI’s definition of sex offenses has changed but the 2013 VAWA amendments didn’t reflect those changes.

One important question addressed by Issue Paper #2 is how to count a single reported incident that falls into multiple categories. Examples of how hypothetical incidents might be counted under different interpretations of the VAWA amendments were submitted by one of the negotiators on the Rulemaking Committee to illustrate the problem.

Counting stalking incidents has also raised questions, including: does the course of conduct count as multiple stalking incidents or one incident, and how do you determine where the crime occurred?

On May 29, 2013, the Department of Education issued a memorandum, stating that:

[F]inal regulations to implement the statutory changes to the Clery Act will not be effective until after the Department completes the rulemaking process … The Department expects that institutions will exercise their best efforts to include statistics for the new crime categories for calendar year 2013 in the Annual Security Report due in October of 2014.

The January 2014 White House Report on Rape and Sexual Assault told us that “the Department of Education is engaging in negotiated rule-making with the goal of publishing a final rule by November 2014.”

In the meantime, schools will need to make their best effort at compliance until these questions are answered. We’ll follow the rulemaking proceedings and pass along information as it becomes available, trying to shed light on what constitutes “best efforts” to report these new crime statistics.

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A Glimpse at Campus SaVE Act Compliance
Posted by On Thursday, February 27, 2014

This week we got a glimpse at what full compliance with the Campus SaVE Act requires. In conjunction with a two-day session earlier this week, the Department of Education’s rulemaking committee produced a draft regulation (34 C.F.R. § 668.46). While this is not the final word, this draft provides insight into what we can expect to see in the final regulation.

As currently drafted, the regulation describes an education program that has two distinct parts: (1) a “primary prevention program,” as well as (2) an “awareness program.”

The primary prevention program is defined as:

[C]omprehensive, intentional, and integrated programming, initiatives, and strategies intended to stop domestic violence, dating violence, sexual assault, and stalking before they occur through the promotion of positive and healthy behaviors and beliefs.

The draft regulation says primary prevention programs include:

[E]fforts to change behavior and social norms, promote healthy relationships, promote healthy sexuality and egalitarian gender roles, promote an understanding of the risk factors and protective factors for bystander inaction, and change social norms around bystander inaction.

Based on the draft regulation, the prevention program should involve a multi-faceted strategy to create social norms that reinforce healthy behaviors and relationships, and change a rape-tolerant culture into a community of active bystanders who do something if they see someone in a risky situation.

The second required component of a compliant SaVE Act training is an awareness program described as:

[C]ommunity-wide or audience-specific programs, campaigns, or initiatives that increase audience knowledge and share information and resources to prevent violence, promote safety, and reduce perpetration.

Examples of awareness programs are:

[A]wareness month campaigns, speak outs, rallies, marches, informational poster campaigns, social media events, and resource Web sites.

These awareness programs reinforce material covered in the prevention program and keep the conversation going. Both of these programs should be ongoing for students and employees.

We expect the committee will produce a revised draft regulation for its third and final session on March 31 and April 1, 2014. We’ll follow the committee’s progress and keep you posted.

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Is There a Right to Cross-examine in Campus Sexual-Assault Hearings?
Posted by On Friday, January 10, 2014

When Brian Harris was found responsible for sexual assault and expelled from St. Joseph’s University, he filed a complaint against the school, claiming he was denied an opportunity to “question and confront his accuser and witnesses to test their veracity and credibility” in violation of provisions in the student handbook and “basic due process” (Complaint, ¶¶ 55 and 82(k)).

Harris and other male college students accused of sexual assault have filed lawsuits, alleging that campus investigations and hearings are unfair and biased in favor of their accusers, depriving them of their right to due process.

As we discussed in our post on the standard of proof in disciplinary proceedings, many of these cases center on the credibility of the two parties. The specific question we’ll look at in this post is whether in a conduct hearing a student accused of sexual assault has a right to “question and confront his accuser” under the Sixth Amendment to the U.S. Constitution, which reads:

In all criminal prosecutions, the accused shall enjoy the right … to be confronted with the witnesses against him …

The U.S. Department of Education has been clear that in campus sexual assault hearings allowing the accused to directly confront the accuser could cause more harm to the victim. ED’s 2001 Sexual Harassment Guidance says “schools should ensure that steps to accord due process rights do not restrict or unnecessarily delay the protections provided by Title IX to the complainant.” In its April 2011 Dear Colleague Letter, the ED is more specific:

OCR strongly discourages schools from allowing the parties personally to question or cross-examine each other during the hearing. Allowing an alleged perpetrator to question an alleged victim directly may be traumatic or intimidating, thereby possibly escalating or perpetuating a hostile environment.

While the ED enforces Title IX compliance in responding to sexual assault complaints, it does not have the last word on the constitutional right to cross-examine witnesses in disciplinary proceedings where the accused faces expulsion. Federal courts have reviewed cases involving due process rights in student conduct proceedings and stopped short of requiring the right to cross-examine witnesses when a student faces expulsion, though the issue has not been finally decided.

Before his appointment as a U.S. Supreme Court Justice, Thurgood Marshall represented Alabama State College students who claimed a denial of due process because they were expelled for misconduct without a notice or hearing. The U.S. Court of Appeals for the Fifth Circuit agreed that due process required the school to give the students notice of and a hearing on the charges before they could be expelled. However, the court said the nature of the required hearing varied, depending on the circumstances. [Dixon v. Alabama State Board of Education (5th Cir. 1961) 294 F.2d 150, cert. denied, 368 U.S. 930 (1961)]

While the Dixon court concluded that a student misconduct hearing (such as one on sexual assault) would require more than a hearing on a failure to meet academic standards, it explained that “more” did not include the right to cross-examination:

By its nature, a charge of misconduct … depends upon a collection of the facts … [and] an opportunity to hear both sides in considerable detail … This is not to imply that a full-dress judicial hearing, with the right to cross-examine witnesses is required.

Citing the Dixon case with approval, the U.S. Supreme Court reviewed a case involving a 10-day suspension from high school and found the students were entitled to “some kind of notice and … some kind of hearing,” but the Court also acknowledged, without elaborating, that “[l]onger suspensions or expulsions … may require more formal procedures.” [Goss v. Lopez (1975) 419 U.S. 565, 579 and 584]

The U.S. Court of Appeals for the Second Circuit also cited the Dixon case when it acknowledged “[t]he right to cross-examine witnesses generally has not been considered an essential requirement of due process in school disciplinary proceedings.” [Winnick v. Manning (2nd Cir. 1972) 460 F.2d 545] Since Glen Winnick admitted that he participated in disruptive behavior in a classroom of students taking a final exam, the court said cross-examination of witnesses would not have changed the outcome and have “been a fruitless exercise.” However, the Winnick court left open the possibility that “if a case of a substantial suspension of a state university student has resolved itself into a problem of credibility, ‘cross-examination of witnesses might [be] essential to a fair hearing.’”

Following its Winnick decision, the Second Circuit again did “not find it necessary to decide the point” of whether students were entitled to cross-examine witnesses in a conduct hearing involving unauthorized use of a residence hall for a “sleep in.” [Blanton v. State University of New York (2nd Cir. 1973) 489 F.2d 377] Again, the court left open the possibility that in student misconduct hearings where the central issue is whether to believe the accused or the accuser the right to cross-examine witnesses may be required.

In a case decided by the Eleventh Circuit Court of Appeals, two veterinary students who were accused of academic dishonesty sued their university for violating due process. They were not allowed to directly cross-examine adverse witnesses but were allowed to ask questions through the hearing officer. The court found, while due process required the university to allow the students to respond to the charges, due process didn’t require cross-examination of witnesses since student “rights in the academic disciplinary process are not co-extensive with the rights of litigants in a civil trial or with those of defendants in a criminal trial.” Therefore, the court concluded that there was no denial of due process. [Nash v. Auburn University (11th Cir. 1987) 812 F.2d 655, 664]

Finally, a U.S. District Court in New York found that a “higher level of formality to ensure fairness” was required to satisfy constitutional due process in a case where a male student accused of rape faced a two-year expulsion. The court described this “higher level” as:

At the very least, in light of the disputed nature of the facts and the importance of witness credibility in this case, due process required that the panel permit the plaintiff to hear all evidence against him and to direct questions to his accuser through the panel. [Donohue v. Baker, et al.  (USDC NDNY 1997) 976 F.Supp.136]

Absent a decision from the U.S. Supreme Court on this issue, the ED’s position allowing questioning of adverse witnesses through the hearing officer — but not direct cross examination — does not violate constitutional due process.

Moreover, the ED’s position is consistent with the policy of encouraging students to report incidents of sexual violence. The possibility of facing cross-examination by their assailants would discourage many victims from reporting sexual assault contrary to the goals of the Campus SaVE Act and the 2011 Dear Colleague Letter. These are laudable goals: protecting victims from secondary trauma, encouraging reporting, increasing accountability, reducing sexual assault, and making campuses a safer place to learn.

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Standards of Proof
Posted by On Tuesday, October 15, 2013

In a typical “he-said-she-said” case of sexual assault, he says it was consensual sex, and she says it was rape. These cases are usually decided on the accused’s and victim’s credibility, and the standard of proof used to reach a decision may tip the scales, as illustrated by a University of Montana (UM) case.

During its investigation of UM for Title IX compliance, the U.S. Department of Education (ED) reviewed a student conduct case in which the lower “preponderance of evidence” standard of proof was applied in the initial proceeding and the accused student was found guilty of sexual assault. After the student appealed, a higher “clear and convincing evidence” standard was applied and the decision was reversed.

The Department of Education has in fact established “preponderance of evidence” as the standard schools must use in cases involving sexual assault. As clarified in its April 2011 Dear Colleague Letter, “in order for a school’s grievance procedures to be consistent with Title IX standards, the school must use a preponderance of the evidence standard (i.e., it is more likely than not that sexual harassment or violence occurred).”

Unfortunately, the ED has not provided any explanation of the different evidentiary standards. This post will define the standards of proof and look at how those standards apply in the decision-making process.

Three Judicial Standards

Three different standards are used in courts of law. Generally, each of the three judicial standards of proof1 requires a different level of confidence in the facts supporting a decision:

  • beyond a reasonable doubt requires at least 95% confidence that the facts support a guilty verdict
  • clear and convincing requires at least 70-75% confidence that the facts support the decision
  • preponderance of evidence requires at least 50.1% confidence that the facts support the decision

In reality, the decision-making process is not as precise as these percentages indicate, but they are one of the yardsticks used to measure the fairness of a decision. The different standards reflect the cost of a wrong decision, measured by the harm caused not only to the accused who is wrongfully convicted or the party that suffers financial harm in a civil suit, but to the legitimacy of the judicial system as a whole.2

The “beyond a reasonable doubt” standard of proof used in criminal cases greatly reduces the risk of convicting the wrong person and reflects the high value of personal liberty to society.3  The 18th Century English jurist William Blackstone explained it this way: “It is better that ten guilty persons escape, than that one innocent suffer.”4  This standard is fundamentally fair and stops short of imposing the impossible burden of having no doubt that the accused is guilty.

The intermediate standard of clear and convincing proof requires a “high probability” or “reasonable certainty” that the weight of evidence favors the decision. It is applied in civil cases involving more than “mere loss of money,” such as fraud or other quasi-criminal conduct, deportation, and permanent termination of parental rights.5

It is also the standard applied in involuntary commitment proceedings involving mentally ill persons. In Addington v. Texas, the U.S. Supreme Court concluded that, “[g]iven the lack of certainty and the fallibility of psychiatric diagnosis, there is a serious question as to whether a state could ever prove beyond a reasonable doubt that an individual is both mentally ill and likely to be dangerous.”6

The preponderance standard is the lowest of the three judicial standards of proof and requires that the weight of evidence makes it more likely than not that the decision is correct. This is the standard used in civil litigation that primarily involves a claim for money. Because the risk of harm involves dollars not loss of liberty society places a lower value on the risk of a wrong decision, which is shared equally by both parties.

As the ED confirmed in the UM “blueprint,” preponderance of evidence is also the standard required in disciplinary proceedings involving sexual misconduct where the accused faces sanctions ranging from a verbal warning to expulsion from school, as well as a damaged reputation.

A fourth standard of proof, “substantial evidence,” is defined as “‘more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.’”7 Strictly speaking, this standard only requires a “substantial” amount of evidence to support a decision. It does not require weighing all of the evidence and deciding which way the scale tips.

The “substantial evidence” standard is applied in disciplinary proceedings involving academic misconduct. In Missouri v. Horowitz, the U.S. Supreme Court found a student’s failure to meet academic standards “calls for far less stringent procedural requirements,” in terms of notice and hearing, than a student conduct violation.8

The Fourth Standard

While the ED requires the preponderance standard for Title IX compliance, the U.S. Supreme Court has not squarely answered the question of which standard of proof is constitutionally required in student disciplinary proceedings involving sexual assault. And lower federal courts have not clearly answered this question.

For example, in Smyth v. Lubbers,9 a federal court reviewing the suspension of a state university student for possession of marijuana concluded that the substantial evidence standard was not adequate under the circumstances of that case because a “conviction for ‘possession of narcotic drugs’ in violation of state criminal laws and/or College regulations is plainly an extremely serious attack upon a person’s good name and reputation.” The court also pointed out that a one-term suspension from school “is a harsher punishment than he was likely to receive from either a state court … or a federal court, for a first-time offense of simple possession of marijuana.”

Under these circumstances, the court found that “any standard lower than a ‘preponderance of evidence’ would have the effect of requiring the accused to prove his innocence” because the substantial evidence standard only requires that a (substantial) quantity of evidence support the decision. Instead, the court concluded a “constitutionally adequate” standard of proof in that case could not be lower than the preponderance of evidence standard, but the court didn’t specify the appropriate standard.

On the other hand, in Gomes v. Univ. of Maine System,10 another federal court refused to overturn the university’s decision to suspend two public university students after they were found guilty of sexual assault even though the university’s decision was based on substantial evidence. The court found the disciplinary proceeding, while “not ideal,” was fundamentally fair. The court explained the tension between these two principles:

A university is not a court of law, and it is neither practical nor desirable it be one. Yet, a public university student who is facing serious charges of misconduct that expose him to substantial sanctions should receive a fundamentally fair hearing. In weighing this tension, the law seeks the middle ground.

The middle ground was described as “whether, in the particular case, the individual has had an opportunity to answer, explain, and defend, and not whether the hearing mirrored a common law criminal trial.” Neither the Court nor the litigants questioned the substantial evidence standard used in that case.

Title IX Compliance Standard

Even when school officials know what standard of proof to apply, they may not understand how to apply it. Going back to the UM case we discussed at the beginning of this post, the official handling the appeal said he found the accused and complainant both credible. He also said he viewed it as “a case of differing perceptions and interpretations of the events in question.” It turns out that the deciding factor was that some of the complainant’s statements began with “I think” or “I don’t think.” The official interpreted this as a “hesitant and equivocal response” and concluded that the complainant’s credibility did not meet the higher standard of proof.

The ED found that UM’s handling of that case on appeal showed an “incomplete understanding” of how to assess credibility, victim responses, force and consent. Therefore, UM officials needed “more training on how to evaluate evidence and the appropriate evidentiary standard to assess it.”

Interestingly, the U.S. Supreme Court expressed doubt about whether the different standards of proof actually affect outcomes or simply provide a way to measure the value of what’s at stake:

Indeed, the ultimate truth as to how the standards of proof affect decision making may well be unknowable, given that factfinding is a process shared by countless thousands of individuals throughout the country. We probably can assume no more than that the difference between a preponderance of the evidence and proof beyond a reasonable doubt probably is better understood than either of them in relation to the intermediate standard of clear and convincing evidence. Nonetheless, even if the particular standard-of-proof catchwords do not always make a great difference in a particular case, adopting a standard of proof “is more than an empty semantic exercise.”11

It has also been suggested that school officials deciding sexual assault cases may “unwittingly require clear and convincing evidence” regardless of the appropriate standard because of the serious consequences to the accused.12 What we’re left with are two possibilities: either the different decisions in the UM case were the result of applying different standards of proof, or one UM official simply believed what she said and the other official believed what he said.

How to evaluate victim credibility is a critical part of the disciplinary process. Brain research has provided insight into trauma victims’ behaviors and responses that helps explain why their credibility is often met with skepticism. In later posts, we’ll look further into this and other issues that provide a deeper understanding of the complicated nature of student disciplinary proceedings involving sexual misconduct.

1. A corollary of the standard of proof is the burden of proof, which is placed on the party who filed a lawsuit or the prosecutor who brought criminal charges to present evidence that establishes the facts required to prove a civil claim or criminal charge in a court of law. Once evidence is presented, a decision is made by applying one of the three judicial standards of proof.
2. U.S. Supreme Court Justice Harlan explained that establishing a standard of proof reflects the social costs we are willing to pay for making the wrong decision, and noted that erroneous decisions are inevitable: “First, in a judicial proceeding in which there is a dispute about the facts of some earlier event … all the factfinder can acquire is a belief of what probably happened … In this regard, a standard of proof represents an attempt to instruct the factfinder concerning the degree of confidence our society thinks he should have in the correctness of factual conclusions for a particular type of adjudication. …. A second proposition … is that the trier of fact will sometimes, despite his best efforts, be wrong in his factual conclusions. In re Winship (USSCt 1970) 397 U.S. 358, 370.
3. In re Winship, 397 U.S. 370; Woodby v. Immigration and Naturalization Service (USSCt 1966) 385 U.S. 276, 285.
4. 4 William Blackstone, Commentaries *358.
5. Addington v. Texas (USSCt 1979) 441 U.S. 418, 431.
6. Id. at 428.
7. Universal Camera Corp. v. NLRB (USSCt 1951) 340 U.S. 474, 477.
8. Missouri v. Horowitz (USSCt 1978) 435 U.S. 78, 86.
9. In Smyth v. Lubbers (W.D. Mich. 1975) 398 F. Supp. 777, the court found that the narcotics violation was much more serious than “spiking the punch at an after-school meeting.” However, the court did not rule on what standard of proof should be applied but only suggested that the “clear and convincing” standard may be required.
10. Gomes v. Univ. of Maine System (D.Maine 2005) 365 F.Supp.2d 6.
11. Addington v. Texas at 424-425, citing Tippett v. State of Maryland (4th Cir. 1971) 436 F.2d 1153, 1166.
12. Note, “Preponderance of the Evidence and Student-on-Student Sexual Assault.” Boston College Law Review Vol. 53:1613, 1649 (2012).

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Court Rejects Ban on Alcohol Advertising in College Papers
Posted by On Friday, September 27, 2013

Until the U.S. Court of Appeals for the Fourth Circuit’s recent decision limited its reach, the Virginia Alcoholic Beverage Control Board’s (ABC) regulations banned all college newspapers from running alcohol advertising. The ban is part of a comprehensive strategy aimed at reducing underage drinking.

Many colleges and universities take a similar “environmental” or “community-level” approach to combat high-risk drinking. These interventions often enlist retailers and advertisers as allies in prevention efforts. 

But in 2006 two college newspapers affected by the regulation, The University of Virginia’s Cavalier Daily and Virginia Tech’s Collegiate Daily, sued the ABC, claiming the ban violated their First Amendment free speech rights.

The newspapers pointed out that a majority of their readership were over 21 (59-60% of the Collegiate Times‘ and 64% of The Cavalier Daily‘s readers). Therefore, while Virginia had a government interest in preventing underage drinking, the papers’ wide distribution to people over 21 meant that the scope of the regulation was too broad.

In its decision, the Court sided with the college newspapers, acknowledging the state’s interest but rejecting the regulation’s overbroad reach.

“While commercial speech is protected by the First Amendment, there is a ‘commonsense distinction’ between commercial speech and other varieties of speech…[therefore] a regulation of commercial speech will be upheld if (1) the regulated speech concerns lawful activity and is not misleading; (2) the regulation is supported by a substantial government interest; (3) the regulation directly advances that interest; and (4) the regulation is not more extensive than necessary to serve the government’s interest.”

Under this analysis, the Court concluded, “the challenged regulation fails…because it prohibits large numbers of adults who are 21 years of age or older from receiving truthful information about a product that they are legally allowed to consume…Accordingly, the challenged regulation is unconstitutionally overbroad.”

The court also rejected the ABC’s rejoinder that the regulation was justified by the state’s more general interest in combatting abusive drinking, whether by underage or of-age drinkers. The Court cited a previous case that determined “states may not ‘seek to remove a popular but disfavored product from the marketplace by prohibiting truthful, non-misleading advertisements.’”

The ruling, however, did not overturn the regulation itself. It only rejected the regulation as applied to these four-year college newspapers. As commentators have pointed out, where a paper’s underage readership is the majority of its readership, the ban might still apply. A paper at two-year college, for instance, might still be subject to the regulation.

Critics of the ban have lauded the decision as a victory for free speech. Indeed, because school papers operate under tight budgets, the ban had a significant impact on the papers’ finances and thus affected their primary mission of news reporting. According to estimates in The Cavalier Daily, lifting the prohibition would raise advertising revenue by 5 to 8%.

And while harm-reduction specialists may lament the loss of another valuable tool, the research is still divided on the effects of advertising on alcohol consumption. 

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Study Abroad Increases Risk for Sexual Assault
Posted by On Tuesday, September 24, 2013

Last month, University of Chicago student Michaela Cross posted a harrowing account of her study abroad experience in India. “For three months I lived…in a traveler’s heaven and a woman’s hell,” Cross wrote. As a South Asian Studies major who had previously spent time in India, she thought she was prepared. But she wasn’t.

In the short account of her travels, posted on CNN’s iReport, Cross described a study abroad experience that mixed wonder and fear, “half dream, half nightmare.” “I was stalked, groped, masturbated at;” she wrote, “and yet I had adventures beyond my imagination.” 

In one particularly terrifying moment, she remembers “lying hunched in a fetal position, holding a pair of scissors with the door bolted shut, while the staff member of the hotel who had tried to rape my roommate called me over and over…breathing into the phone.”

After returning from abroad, Cross said she was diagnosed with Post Traumatic Stress Disorder (PTSD) and has been unable to attend to classes.

“PTSD strikes me as a euphemism,” wrote Cross, “because a syndrome implies a cure. What, may I ask, is the cure for seeing reality, of feeling for three months what its [sic] like for one’s humanity to be taken away.”


Students Abroad

Study abroad is an increasingly large part of undergraduate education at U.S. colleges and universities.

According to the Institute for International Education, in 2010-2011, 273,996 U.S. students studied abroad for academic credit, a slight increase from the previous year. It’s likely that the numbers will continue to grow as leaders and educators tout study abroad as central to education in a global economy.

But Cross’s experience and others like it illustrate that studying abroad does not come without dangers. As students plunge themselves into unfamiliar cities and cultures, they also expose themselves to new dangers.

Indeed, a recent study in the journal Psychological Trauma reports that female undergraduates are three to five times more likely to experience sexual assault while studying abroad than on a U.S. campus, where women are already at a high risk of sexual assault.

The study was the first to measure the prevalence of sexual assault in study abroad programs. Researchers asked women who had studied abroad in the past two academic years to fill out the Sexual Experiences Survey, a widely-used questionnaire for measuring the incidence of sexual assault. The results were startling:

  • 83% of women reported an unwanted sexual experience, 6% an attempted sexual assault, and 4.6% a completed sexual assault.
  • 87% of the nonconsensual sexual contact was committed by nonstudent local residents. 
  • Women studying abroad in Africa and the Americas reported more sexual assaults than those studying in Europe. There was no information on study abroad in Asia.

The researchers speculated as to why the prevalance of sexual assault is higher for students studying abroad.

Some factors might include students’ lack of familiarity with the culture and greater reluctance to go to local authorities for help, both of which make foreign students easier targets for perpetrators.
Researchers also pointed to other factors, such as the large number of study abroad programs in major cities, local stereotypes about American women, and the legal access to alcohol increasing student drinking rates.

Although the study does not offer recommendations for schools running study abroad programs, the high prevalence of sexual assault during study abroad suggests that schools may want to coordinate between their study abroad program and the campus Title IX coordinator.

At the very least, schools should review and update the information they provide students before the students arrive in a host country, establish clear procedures for reporting and handling sexual assault complaints while students are abroad, and make sure students are aware of counseling and other student health services that are available abroad and after students return.

Further Resources

The U.S. State Department has a website that provides student travelers with many valuable resources.

Work Cited

Kimble, M., Flack, W.F., Burbridge, E. (2013). “Study Abroad Increases Risk for Sexual Assault in Female Undergraduates: A Preliminary Report.” Psychological Trauma: Theory, Research, Practice, and Policy, 5, 426-430.

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