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When Civil Liberties Collide With Civil Rights
Posted by On Wednesday, October 14, 2015

The First Amendment protects the free exchange of ideas in public schools at every level of education, and Title IX protects a student’s right to learn in a hostile-free environment at all federally-funded schools. When Title IX collides with the First Amendment, it requires schools “to mediate the tension created by the collision of rights.”

One former college administrator framed the issue this way: “Academic freedom is about education. When hostile behavior gets in the way of the educational process, academic freedom must give way to equal opportunity.”

In this post, we’ll explore the difficult balancing act required to protect these two fundamental values in an educational environment. School policies play an important role in these cases. As we’ll see, legally sound sexual harassment policies are critical to mediating this tension and avoiding lawsuits.

OCR and SCOTUS on Title IX and Free Speech

When Title IX complaints involve First Amendment issues they enter the realm of academic freedom, which the U.S. Supreme Court (SCOTUS) has deemed a matter of national interest. In two landmark decisions, the SCOTUS ruled that state laws violated the First Amendment because they prohibited teaching any subject except in English [Meyer v. State of Nebraska (1923) 262 U.S. 390], and required professors of public universities to sign a certificate that they were not Communists [Keyishian v. Board of Regents (1967) 385 U.S. 589].

In Tinker v. Des Moines Independent Community School Dist. (1969) 393 U.S. 503, 511), the SCOTUS famously said that students in the public schools do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate” (Tinker at 506). Since no substantial disruption of school activities was reasonably expected or actually occurred, adopting a school policy to prohibit students from wearing symbolic black armbands to protest the Vietnam War violated the students’ First Amendment rights.

However, the SCOTUS also concluded that high school educators did not violate students’ First Amendment rights when they refused to publish the students’ articles in the school newspaper—one describing students’ experiences with pregnancy and another discussing the impact that parents getting divorced has on students—based on “legitimate pedagogical concerns” [Hazelwood School District v. Kuhlmeier (1988) 484 U.S. 260].

In 1992, U.S. Supreme Court Justice Scalia explained that government restrictions on speech are not absolutely prohibited. And he noted that sexually derogatory “fighting words” in the workplace are not protected by the First Amendment:

Thus, for example, sexually derogatory “fighting words,” among other words, may produce a violation of Title VII’s general prohibition against sexual discrimination in employment practices. [citations omitted] Where the government does not target conduct on the basis of its expressive content, acts are not shielded from regulation merely because they express a discriminatory idea or philosophy. [RAV v. City of St. Paul (1992) 505 U.S. 377, 389-390]

In 2003, the Department of Education’s Office for Civil Rights (OCR) issued a Dear Colleague Letter to confirm that “There is no conflict between the civil rights laws that this Office enforces and the civil liberties guaranteed by the First Amendment.” In other words, Title IX prohibits harassment that is serious enough to limit or deny a student’s educational opportunities, not speech that is protected under the First Amendment.

In its 1997 Sexual Harassment Guidance, the OCR describes the balance between a school’s Title IX obligations and the protection of academic freedom, which does not involve bright lines:

Overall, the Guidance illustrates that in addressing allegations of sexual harassment, the judgment and common sense of teachers and school administrators are important elements of a response that meets the requirements of Title IX . . . the resolution of cases involving potential First Amendment issues is highly fact-and context-dependent. Thus, hard and fast rules are not appropriate.

Since schools must address these issues on a case-by-case basis, next we’ll look at faculty and student conduct to illustrate some of the factors that help schools determine when civil liberties must give way to civil rights.

Unpopular and Offensive Content

A recent case made headlines when Northwestern Professor Laura Kipnis complained about her institution’s sexual harassment policies and found herself in the middle of what she called “My Title IX Inquisition.” Two students had filed a Title IX complaint for retaliation based on Professor Kipnis’s essay, “Sexual Paranoia Strikes Academe,” in which she wrote that the new sexual harassment policies “aren’t just a striking abridgment of everyone’s freedom, they’re also intellectually embarrassing. Sexual paranoia reigns; students are trauma cases waiting to happen.”

After an investigation, Northwestern found Professor Kipnis had not violated Title IX. As pointed out by Erin Buzuvis of the Title IX Blog, a Title IX violation requires severe or pervasive conduct that “would have to rise to the level of retaliatory harassment.” Additionally, Kipnis wrote about a matter of public concern. Without more, unpopular and offensive content about a matter of public concern does not violate Title IX.

In another case involving allegations of faculty-on-student harassment, Professor Silva used this example to gain his students’ attention: “Belly dancing is like jello on a plate with a vibrator under the plate.” Professor Silva said he was illustrating how to define concepts in a technical report by using a general classification and a simple metaphor. He was suspended from teaching a technical writing class.

However, the court found that Professor Silva was disciplined “simply because six adult students found his choice of words to be outrageous,” even though his example was used for a valid educational objective and was part of a college class lecture, and these were adult college students. Thus, the court concluded that using the school’s sexual harassment policy to discipline Silva’s classroom speech violated the First Amendment [Silva v. University of New Hampshire (USDC NH 1994) 888 F.Supp. 293].

A federal court found the definition of Temple University’s sexual harassment policy too broad because harassment was not qualified with a severe or pervasive requirement. Therefore, it could prohibit speech protected by the First Amendment [DeJohn v. Temple University (3d Cir. 2008) 537 F.3d 301]. The policy definition also prohibited “gender-motivated” conduct, which focused on the actor’s intent rather than the actual effect of creating a hostile environment that interferes with a person’s educational opportunities.

Another federal court rejected a student’s claim that Oakland University’s conduct code was too broad because the court concluded that the student did not engage in constitutionally-protected speech. The adult male student wrote “lascivious entries” in a Daybook assignment, expressing lust for his female English professor, which the court found this was not “pure speech,” as in Tinker. Nor was the student expressing his views on matters of public concern. The court concluded that “speech protected in other settings is not necessarily protected when made in response to a classroom assignment and when directed at one’s professor” [Corlett v. Oakland University (USDC ED MI 2013) no. 13-11145].

In summary, legally sound sexual harassment policies define the prohibited conduct consistent with the First Amendment and OCR’s sexual harassment guidance. The cases also provide these factors to help determine if a professor’s statements were protected speech, including: (1) the age and sophistication of the students, (2) the relationship between the teaching method and a valid educational objective, and (3) the context and manner of presentation.
And, finally, OCR also advises schools to seize a teachable moment:

[W]hile the First Amendment may prohibit a school from restricting the right of students to express opinions about one sex that may be considered derogatory, the school can take steps to denounce those opinions and ensure that competing views are heard.

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Weekly Roundup
Posted by On Friday, May 22, 2015

A new study reveals a sexual assault epidemic at one school in New York, Huffington Post publishes a list of schools under Title IX investigation for sexual harassment, and U.S. News looks at what’s working and what still needs to be done in the fight against campus sexual assault.

New Study Published on the Prevalence of Sexual Assault

We’ve written extensively about the debate over the prevalence of sexual assault on college campuses, and the need for more data about the rate at which college students are victimized by sexual violence. Now, a new study published by the Journal of Adolescent Health suggests there is at least one upstate New York university where over 18% of women will become victims of rape or attempted rape by the end of their freshman year. Rape was defined as “vaginal, oral, or anal penetration using threats of violence or use of physical force, or using the tactic of victim incapacitation.” 15% of the women surveyed were victims of completed or attempted rape while they were incapacitated, and a further 9% were victims of completed or attempted rape by force. While the survey’s small sample size means that it will not be putting the debate over the nation-wide prevalence of sexual assault to rest, it serves as further evidence of the desperate need to address college campus rapes.

Schools under Title IX Investigation for Sexual Harassment Cases

The Department of Education’s OCR has been disclosing the names of schools under Title IX investigation for failing to properly adjudicate sexual assault cases for some time. What they haven’t done, until now, is release the names of schools under Title IX investigation for mishandling sexual harassment cases. Now, thanks to a Freedom of Information Act request submitted by the Huffington Post, that list of schools is available—click the link above to see it on their website. The Huffington Post makes a strong argument for the relevance of this information to current and prospective students of the listed institutions, pointing out that besides the impact harassment itself has on a student’s well-being and learning environment, such behavior is “inextricably linked” to sexual assault.

Sexual Assault: What’s Working, What Work Still needs to be Done

This piece from US News and World Report takes a look back at some of the efforts to combat sexual assault we’ve seen over the past few years. While the article highlights impressive gains, especially in the arena of increased awareness, it also points out that there is much work that still needs to be done. The piece calls for ongoing training programs that make an actual effort to change campus culture, as opposed to brief sessions intended only to fulfill a legal requirement, and for colleges “to take a more comprehensive approach to addressing sexual assault, rather than a piece-by-piece approach.”

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Weekly Roundup
Posted by On Friday, August 15, 2014

The recent furor over campus sexual assault is not, of course, a reaction to a recent problem. How is it that a problem that has plagued schools for years is only now being discussed so often and so publically? Now that the problem is receiving national attention, what conversations are taking place about sexual violence and harassment in higher education? This week we bring you three articles about the expanding discussion that is shedding light on an issue that has been kept in the dark for decades.

Why Is the National Discussion About Campus Sexual Assault Only Taking Off Now?

While the ongoing national discussion surrounding campus sexual assault is a relatively recent phenomenon, the fact of campus sexual assault is not. In this piece from NPR, activists and administrators discuss the recent shift from “the dirty little thing that we don’t talk about” to an open and frank conversation. According to the godmother of Title IX, Bernice Sandler, “It’s like it came out of the closet. The darkness is over.” The article describes the Education Department’s 2011 “Dear Colleague” letter as a game changer that allowed for more open discussion and put pressure on schools to begin the long process of confronting campus sexual assault.

(more…)

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Weekly Roundup
Posted by On Friday, May 30, 2014

After last week’s mass shooting took the lives of six UC Santa Barbara students, and in light of the misogynistic videos and writings posted online by the shooter prior to the killings, now seems like as good a time as any to discuss some of the ways  that mainstream society perpetuates misogynistic views about women. Here are three stories about researchers, commentators, and everyday Twitter users who are contributing to that discussion.

#YesAllWomen

The hashtag #YesAllWomen was created in direct response to the shootings in Santa Barbara as a reminder that while not all men (also a trending hashtag this week) are violent misogynists, all women have suffered harassment and sexism. #YesAllWomen has become a dynamic conversation on Twitter, with thousands of women across the world describing their own experiences of sexism and harassment, which range from stories of sexual assault on college campuses to discrimination in the workplace.

Arthur Chu on “Nerd Lust”

Former Jeopardy champion and acknowledged nerd Arthur Chu has written a thought-provoking piece on misogyny in nerd culture, a topic which doesn’t always receive as much attention as, say, sexist frat brothers. Chu, however, points to the ugly implications of Steve Urkel’s stalking, or a rape scene in Revenge of the Nerds being played for laughs. He also addresses real life harassment, stalking, and violence which he argues stem from a dangerous attitude on the part of many men—that they are as entitled to a woman’s body or companionship as they are to the bonus points at the end of a well-played video game level. Chu calls on his “fellow male nerds” to understand that “other people’s bodies and other people’s love are not something that can be taken nor even something that can be earned—they can be given freely, by choice, or not.”

Campus Slut-Shaming

A pair of sociologists from the University of Michigan and UC Merced, Drs. Elizabeth Armstrong and Laura Hamilton respectively, spent five years living in a dorm room, researching the habits and behavior of the 53 college women on their floor. Of particular interest are their findings about the word “slut” and the practice now widely known as slut-shaming. Armstrong and Hamilton concluded that, while it was common for girls to put down other girls by calling them sluts, there was no clear definition of what constituted slutty behavior. Many girls’ definitions of the term not even tangentially related to sexual activity. They also found that there was a significant classist dimension to slut-shaming, with working class girls more likely to be publicly referred to as sluts than their upper-class counterparts. The researchers’ conclusion? “[T]hat ‘slut’ is simply a misogynistic catch-all, a verbal utility knife that young people use to control women and create hierarchies.”

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Confidentiality vs. Student Safety
Posted by On Tuesday, December 17, 2013

A victim’s request for confidentiality is a problem that schools often grapple with under the difficult circumstances of a sexual assault case. In a previous post we discussed how FERPA allows public disclosure of the outcome of student conduct hearings when accused students are found responsible for sexual assault. But what about a victim’s request for confidentiality when the report is made? Does the school have an obligation to respect the victim’s wishes?

The following case provides one example of how following a school’s reporting policies can have unintended results. Seventeen-year-old Anna Livia Chen told her Residential Assistant she would not participate in Swarthmore College’s Acquaintance Sexual Assault Prevention workshop for incoming freshmen. As a childhood sexual abuse survivor, Anna said it would be too emotionally difficult for her to listen to other survivor’s stories, which is a standard part of the program.

Anna was abused when she was a junior high school student in California. Given that the incident occurred years before and thousands of miles away, Anna and her RA didn’t think this needed to be reported to the Title IX coordinator. Swarthmore’s sexual assault policy “applies to off-campus conduct that is likely to have a substantial adverse effect on any member of the Swarthmore College community or Swarthmore College . . ..”

However, a facilitator who contacted Anna to arrange a private session told the RA that Swarthmore’s new interim policy requiring all college employees to report information about sexual assault to Public Safety applied to Anna’s case. The RA complied by reporting the incident to Swarthmore’s Title IX coordinator, but stressed that Anna “was no longer in any danger whatsoever” and had “all the support” she needed from her family, friends, and therapist back home.

The Title IX coordinator, in turn, was required by the school’s policy to report the information to the school’s general counsel who advised that under Swarthmore’s policy the abuse must be reported to the Pennsylvania child abuse hotline. It should be noted that pending Senate Bill 31 would add postsecondary school employees to the list of mandatory child abuse reporters in Pennsylvania.

When she was contacted by child protective services, Anna told CPS that she did not want them to investigate her case. Later, on Anna’s 18th birthday, CPS informed her that it was legally required to notify local police about her case.

Swarthmore’s Policy Goal

According to Swarthmore’s secretary of college, the reporting policy that set this chain of events into motion was meant “to not only meet the letter and spirit of the law, but to ensure that our policies assure the safety of our students, provide meaningful support to victim/survivors, and enable us to respond with the highest levels of fairness, compassion, and respect for privacy.”

But this is how Anna described her experience: “So much of my time was being drained by having meetings with various administrators and resources, not to mention the emotional energy it took. I had no time for self-care, which is something that I desperately needed with everything that was going on. I am still frustrated that this process got to a point where it overtook my life in the way that it did.”

Now Anna is working on changing Swarthmore’s policy and procedures to prevent other victims from having to go through the same experience.

Title IX and Victim Confidentiality

What does Title IX require schools to do to protect a sexual assault victim’s confidentiality? First, Anna should have been told that school employees are required to report information they receive about sexual assault. If she wanted the information to remain confidential, she should have been referred to confidential resources, such as religious and professional counselors.

Second, Title IX requires schools to respect a victim’s request for confidentiality in a sexual assault investigation and response except when it interferes with the school’s ability to stop harassment and protect the safety of its students. The OCR’s 2001 Handbook explains:

In all cases, a school should discuss confidentiality standards and concerns with the complainant initially. The school should inform the student that a confidentiality request may limit the school’s ability to respond … If the student continues to ask that his or her name not be revealed, the school should take all reasonable steps to investigate and respond to the complaint consistent with the student’s request as long as doing so does not prevent the school from responding effectively to the harassment and preventing harassment of other students.

In its 2008 publication, “Sexual Harassment: It’s Not Academic,” the OCR listed three factors that must be weighed against the victim’s request for confidentiality in light of the school’s “responsibility to provide a safe and nondiscriminatory environment for all students”:

  • seriousness of the alleged harassment;
  • age of the harassed student; and
  • other complaints that the same individual has harassed others.

Additionally, state or local laws may require schools to report incidents to the police. In addition, the April 2011 “Dear Colleague Letter” included a fourth factor that must be weighed against the victim’s request for confidentiality: “the alleged harasser’s rights to receive information about the allegations if the information is maintained by the school as an ‘education record’ under [FERPA].” The bottom line is that the victim should be told if the school cannot ensure confidentiality.

The OCR’s latest official word on victim confidentiality is found in the Resolution Agreement between the OCR and the University of Montana. As part of that settlement agreement, UM adopted a policy with “an assurance that the University will keep the complaint and investigation confidential to the extent possible.” Below is UM’s policy protecting victim confidentiality:

UM’s Policy 507 – Title IX adopted May 25, 2012

IV. Confidentiality of the Alleged Victim:

Student confidentiality will be respected to the extent possible. Even if the alleged victim requests confidentiality or asks that the complaint not be pursued, a campus is required to:
A. take all reasonable steps to investigate and respond to the complaint to the extent possible consistent with the alleged victim’s wishes;
B. notify the alleged victim that the failure of the alleged victim to pursue a complaint may limit the campus’ ability to fully address the matter; and
C. report the incident or assault to local law enforcement authorities if a health or safety emergency as defined by state or federal law is found by the campus to require such reporting.

Summary

To summarize, these are the essential points that college employees need to know about a victim’s confidentiality:

  • if you expect to or do receive information about sexual assault, explain that you need to make a report to the school’s Title IX coordinator
  • maintaining confidentiality may limit the school’s ability to fully respond to the alleged assault
  • students who desire a confidential conversation should meet with a counselor or other confidential resource
  • if individuals prefer no action be taken at that time, let them know you will share their preference with the Title IX coordinator
  • explain to the victim that their request for confidentiality will be respected to the extent possible, however:
  • the school must respond to sexual assault effectively and prevent harm to other students
  • the accused student may have a right to receive information about the allegations if it is included in the school’s education records

Finally, if disciplinary action is not possible because the victim insists on confidentiality, the OCR says the school “should pursue other steps to limit the effects of the alleged harassment and prevent its recurrence.” Those “other steps” are education and prevention, such as defining sexual misconduct, deciding what the school’s policies and disciplinary procedures are, and possible sanctions for violating the school’s rules of student conduct.

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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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The University of Montana’s Cautionary Tale
Posted by On Wednesday, September 18, 2013

“A rape-tolerant campus with ineffective programming, inadequate support services for victim survivors, and inequitable grievance procedures threatens every student.” Diane G. Barz, retired Associate Justice Montana Supreme Court, Investigation Report dated January 31, 2012

Yearlong federal investigations of the University of Montana (UM) provide a cautionary tale for colleges and universities about how not to respond to reports of sexual assault. The U.S. Department of Education (ED) and the U.S. Department of Justice (DOJ) concluded that UM’s responses to female students who reported sexual assaults were delayed, inadequate, and discriminatory.1

ED’s Title IX compliance review of UM produced “a blueprint for colleges and universities throughout the country to protect students from sexual harassment and assault.” The DOJ’s parallel investigation of UM’s Office of Public Safety (OPS) resulted in a “roadmap for reform” that “will stand as a model” for other schools to prevent sex discrimination from interfering with an effective response to sexual assault complaints.

These problems were not confined to UM’s Missoula campus. The DOJ also investigated the Missoula Police Department (MPD) and reviewed over 350 reports of sexual assault made by Missoula women, including UM students, received between January 2008 and May 2012. In the opening paragraph of its May 15, 2013 Letter of Findings, the DOJ concluded that the MPD’s “response to sexual assaults compromise the effectiveness of sexual assault investigations from the outset, make it more difficult to [uncover] the truth, and have the effect of depriving female sexual assault victims of basic legal protections.”

We’ll first look at the underlying problems that contributed to UM’s “rape-tolerant campus” because policies and procedures alone cannot fix systemic problems. Instead, they require an ongoing commitment to effect change in attitudes that turn into action. In later posts, we’ll discuss the specific steps to Title IX compliance laid out in the “blueprint” and “roadmap.”

Acknowledging the Problem
Before the federal investigations, UM had been grappling with its sexual assault problem. In December 2010, a female student reported to the MPD that four UM football players drugged and raped her.2 While the MPD found there wasn’t enough evidence for criminal charges, police informed UM’s football coach about the allegations, but that report was not passed along to UM administrators until a year later.3

In December 2011, Royce Engstrom had been UM’s president for just fourteen months when he received a call about the allegations. Once President Engstrom became involved, UM hired retired Montana Supreme Court Justice Diane Barz to investigate sexual assault reports at UM. Her final report found nine incidents reported between September 2010 and December 2011. Her recommendations included making information and resources on sexual assault readily available, training UM personnel on how to report and respond to sexual assault, and educating students on the consequences of risky behavior.4

Despite Barz’s report, there was internal resistance to acknowledging UM’s sexual assault problem. Around that time, internal email messages showed that UM Vice President Jim Foley questioned UM Dean of Students Charles Couture’s use of the term “gang rape” to describe the December 2010 incident. Foley suggested that Couture should have called it “date rape.” Couture replied, “Jim, I used that term [gang rape] when I accused the four football players of rape . . . because that is what it was.”

Over the next six months, Engstrom had fired UM’s football coach and athletic director, and Foley had stepped down as UM’s Vice President.

But just a month after Justice Barz’s report, two more women complained to UM employees that they were sexually assaulted on the same night by the same male student, but he fled the country after UM’s Dean of Students notified him of the charges and there was a one-week delay in reporting the incidents to local law enforcement.

Sexual Assault Case Reviews
Against this backdrop, the ED and DOJ reviewed UM’s responses to twenty-three sexual assault complaints and ten sexual harassment complaints received by UM over the prior three school years. They found that UM’s delayed and inadequate responses to complaints resulted in students not feeling safe on campus, suffering mental health problems, becoming suicidal, withdrawing from classes, or leaving the University altogether.

A sampling of cases discussed in the ED and DOJ’s Joint Letter of Findings shows that UM’s problematic responses were not confined to a particular area. In one case, the UM official investigating a sexual assault complaint knew that the victim was upset because she repeatedly saw her attacker on campus, but took no steps to protect her. Another sexual assault victim’s roommate reported to their Resident Assistant (RA) that the victim was suicidal. The RA reported this to the Residence Life Office but there was no record of any action taken to ensure her safety. In yet another case, sufficient evidence was found to expel the student accused of sexual assault, but he was allowed to stay on campus for six more weeks to finish the semester. While the victim had left the University shortly after she reported the sexual assault, allowing her attacker to remain on campus may have left other students at risk of assault or harassment.

In two other cases, UM stopped its investigation because it “assumed the victims had stopped cooperating,” even though UM had not received any communication from the victims that they no longer wished to continue with the grievance process.

Given these experiences, it is not surprising that other students were reluctant to report sexual assault because they feared retaliation, or that the University wouldn’t respond, or, if it did, would respond negatively. One student said that University employees said things that indicated they didn’t believe her. Another former student said she didn’t report being sexually assaulted by a football player because they “could get away with whatever they wanted.” Other students, community members, and faculty echoed that assessment, with some people saying that football players were treated like they were “Gods.”5

And the DOJ’s investigation of UM’s campus security revealed another major problem: OPS’s responses to student reports of sexual assault were “marked by confusion, repetition, and poor investigative practices.”

For example, one OPS case narrative focused on the woman’s alcohol-scented breath and “clean and undamaged” clothing. A victim advocate said OPS interviews were “painful” for the victims because they were interviewed by several officers who asked “very personal questions” without warning or explanation of their relevance, and students were also discouraged from filing a police report. Victims who did report their assault to the Missoula Police Department (MPD) had to relive their trauma by answering the same questions because OPS officers didn’t provide MPD with enough information.

Two OPS officers described a sexual assault reported in a university residence hall as “regretted sex.” And OPS Chief Taylor told investigators that the responding officer’s job is to determine if the sexual assault is “provable.” However, as the DOJ found, determining the veracity of the woman reporting a sexual assault before a thorough and unbiased investigation is completed not only indicates a failure to adequately respond to sexual assault, but “is particularly problematic given the data showing that the overwhelming majority of sexual assault allegations reported to the police are true.”6

Based on ample evidence, the DOJ concluded that the OPS’s “failure to adequately respond to reports of sexual assault is due at least in part to gender discrimination.” By discouraging them from reporting sexual assaults to law enforcement, OPS discriminated against women, deprived them of basic legal protections, and put their safety at risk.

Systemic Change
With mounting evidence and media coverage of UM’s sexual assault problems, Missoula City Councilman Dave Strohmaier told over 100 community members gathered to hear from UM and community leaders, “If there are systemic problems with how we are addressing violence within our community then we absolutely need to move aggressively on all fronts to address it.”

As Justice Barz said, a rape-tolerant campus climate threatens every student. So, Title IX requires that when systemic problems discourage students from reporting sexual assault, schools must take “actions … to address the educational environment, including special training, the dissemination of information about how to report sexual harassment, new policies, and other steps designed to clearly communicate the message that the college or university does not tolerate, and will be responsive to any reports of, sexual harassment.”

The ED’s and DOJ’s findings and conclusions in the UM case show that a top-down strategy is the foundation for creating a campus culture that does not tolerate sexual assault, and that other key components of the ED-DOJ strategy are education and effective procedures for handling problems when they arise.

In future blog posts, we’ll dig deeper into the UM investigations and the resulting documents that provide the ED’s and DOJ’s “blueprint” and “roadmap” for schools on how to respond to sexual assault, create a safe learning environment, and avoid becoming a cautionary tale.


1. The settlement agreement relating to the Title IX compliance review among UM, the DOJ, Civil Rights Division, and ED, Office for Civil Rights is set forth in the Resolution Agreement dated May 9, 2013. The settlement agreement between the DOJ and UM Regarding OPS’s Response to Sexual Assault is set forth in the Memorandum of Agreement (MOA) dated May 9, 2013.
2. Another female student reported that she was drugged and raped around that same time but did not want to pursue action against her assailants (Investigation Report dated January 31, 2012).
3. Missoula County Attorney Fred Van Valkenburg discussed the case with a local newspaper reporter, stating “I think that clearly the evidence in the case indicates that what happened was with consent, not without consent,” he says. “There may have been sex with more than one person—that may seem sort of odd to people that someone might agree to have sex with more than one person—but I don’t think because it’s odd makes it automatically a non-consensual situation.”
4. Justice Barz also noted, “I am disappointed with the lack of response from students with knowledge of house parties where the incidents were alleged to have occurred. Some that have been questioned have not been truthful. I believe ‘lying’ is also covered under the Student Conduct Code” (Investigation Report dated January 31, 2012).
5. In August 2012, the New York Times reported pending rape charges against two UM football players, and a “widespread feeling in Missoula that players had been coddled, their transgressions ignored or played down.” In January 2013, running back Beau Donaldson pled guilty to rape and was sentenced to ten years in prison. Quarterback Jordan Johnson was acquitted on rape charges on March 1, 2013.
6. The Letter of Findings cites Kimberly A. Lonsway, Joanne Archmbault & David Lisak, “False Reports: Moving Beyond the Issue to Successfully Investigate and Prosecute Non-Stranger Sexual Assault,” 3 The Voice 1-3, NDAA’s National Center for the Prosecution of Violence Against Women (2009).

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