Former OCR Attorney: ‘Dear Colleague’ Letter’s Preponderance Mandate ‘Unlawful’

Today in College Insurrection, Competitive Enterprise Institute Senior Attorney and former Department of Education Office for Civil Rights (OCR) attorney Hans Bader pens an impressive analysis of how his old office missed the mark when it threatened to strip colleges and universities of federal funding if they did not, among other things, lower the standard of evidence necessary to discipline students for sexual misconduct to the low "preponderance of the evidence" standard. 

Torch readers are likely familiar with the controversy, and Bader's piece is well worth a read for its clarity, adding additional arguments as to why OCR's April 4, 2011, "Dear Colleague" Letter  (DCL) is dead wrong. Bader explains:

The Education Department's reasoning for imposing a low "preponderance" standard on school disciplinary proceedings was that this "is the standard of proof established for violations of civil-rights laws" in lawsuits brought in federal court. Therefore, it claimed, preponderance must also be "the appropriate standard for" schools to use in "investigating allegations of sexual harassment or violence.'"

It was completely true, and completely irrelevant, that the preponderance of the evidence standard applies in lawsuits in general, as well as civil-rights cases. But that burden of proof applies to whether the school violated Title IX by behaving inappropriately, not whether students or staff engaged in harassment. Students cannot violate Title IX; only schools can be sued under Title IX, not individuals. (See, e.g., Smith v. Metropolitan School District (1997).) Moreover, Students "are not agents of the school," so their actions don't count as the actions of the school.

The mere existence of harassment by students isn't enough for liability under Title IX. More is required. The school's own actions in response to the harassment must be culpable. As the Education Department admitted in its 1997 "Sexual Harassment Guidance," "Title IX does not make a school responsible for the actions of harassing students, but rather for its own discrimination in failing to remedy it once the school has notice." (62 FR 12034 (1997)). So to violate Title IX, an institution's own actions must be proven culpable under a "preponderance" standard — not the mere occurrence of harassment.

Bader makes several other important arguments, including points about the DCL's insistence that institutions prohibit the direct cross-examination of the accuser by the accused student; its requirement that schools may only allow the accused to appeal guilty findings if the accuser can also appeal exonerations, or punishments that the accuser deems too slight; and the argument that the DCL cannot lawfully bind schools as OCR claims, since it was never offered for public comment before it was issued, as required by the Administrative Procedure Act. 

Bader's arguments are powerful and persuasive—a must-read for anyone following the issue closely.