Lisa Anderson, executive director, Atlanta Women for Equality (John Disney/ALM)
Last week, an opinion piece discussing the new University System of Georgia Sexual Misconduct Policy posited that the U.S. Department of Education must protect the respondent’s due process rights in any “university-initiated Title IX investigation” of sexual misconduct allegations by “tweak[ing] past policies” to require, for example, that “the appropriate law enforcement and prosecutor’s office investigate and adjudicate the complaint”; and that school disciplinary policies impose the beyond a reasonable doubt standard of proof in a way “consistent with constitutional norms in a criminal case.”
Make no mistake, I oppose all unjustly weighted sexual misconduct grievance procedures. It is for that reason that I object to any suggestion that DOE should, or can, act with unconstitutional caprice to discard statutes such as Title IX and the Clery Act. Indeed, Title IX’s purpose is to ensure that parties are treated equitably in all aspects of their educations. The problem is that schools fail to comply.
The article supports its proposal with striking inaccuracies concerning not only the new policy, but also the laws that it violates. For example, the piece asserts that it was not until DOE released guidance materials in 2011 and 2014 that schools were required to address sexual misconduct complaints with “swift investigation and adjudication” using the preponderance of the evidence standard of proof.
However, those guidance materials only provided clarification and distilled descriptions of preexisting legal responsibilities, the vast majority of which were also enumerated in previous DOE publications, such as the 2001 guide for sexual harassment cases, including sexual violence.
In fact, Title IX’s implementing regulations have required that schools provide “prompt and equitable” complaint resolutions since 1975, and DOE and DOJ have for decades found schools responsible for Title IX violations precisely because the institutions did not use the preponderance standard. Moreover, even before 2011, over 80 percent of schools with grievance policies identifying a standard of proof—including USG institutions—identified preponderance of the evidence, while only about 3 percent claimed to use beyond a reasonable doubt.
Unfortunately, the article’s errors echo a tragically widespread misconception of differences between the criminal justice system and school disciplinary procedures—an often deeply-ingrained misunderstanding of what “due process” means.
Determining exactly what process is due requires balancing elements such as interests at stake; risk of error; the probable value of other procedural safeguards; the burden of additional protections; and the need for efficient adjudication. Accordingly, beyond a reasonable doubt is the only acceptable standard of proof in criminal cases. Likewise, and as courts and administrative agencies do in almost all civil matters, schools must employ the preponderance standard to afford the due process protections necessary to achieve fair, legally sustainable resolutions for sexual misconduct complaints.
In criminal cases, private citizens are up against the state, a macroscopic entity that, tapping resources that dwarf those of individual defendants, not only makes the law, but also investigates, prosecutes, adjudicates and imposes punishments for violations.
The interests at stake for defendants are mammoth. They risk incalculable losses of liberty through imprisonment, lifelong registration as sex offenders, even forfeiture of the right to vote. However, states like Georgia constitute millions of individuals, and the social contract holds stronger than ever when judicial systems err on the side of freeing 10 guilty defendants to prevent wrongful usurpation of one individual’s autonomy.
As a result of this profound imbalance of power and interest, our duty to honor the due process protections the Constitution affords criminal defendants is a light burden indeed.
In school-based sexual misconduct complaints, however, both parties are private individuals—alleged survivor-victims and alleged offenders—with the same interest at stake: unfettered access to an education at a particular institution. On the other hand, schools must act as impartial investigators and adjudicators—much like the EEOC—who have agreed to use federal funding to offer an educational environment free of sexual hostility. Thus, the question school administrators must answer is whether an individual is responsible for violating the conduct code the institution adopted to fulfill its Title IX obligations—rules that neither police officers nor prosecutors have jurisdiction to enforce.
Thus, as the law and DOE guidance expressly provide, schools must respond to sexual misconduct complaints by weighing the cases parties present equitably, never presuming falsehood from either side, always affording each the same procedural protections, including the right to access evidence, to rebut statements made against them, and to choose advisers.
In fact, prompt, equitable responses from schools are not the only remedies Title IX affords all parties. Regardless of whether allegations are reported to law enforcement, anyone involved in a school-based sexual misconduct complaint, including the respondent, may request an inquiry from DOE and, as the article mentioned, file suit against the school for Title IX noncompliance.
And this gets at the heart of the difference between Title-IX-compliant resolutions of school-based sexual misconduct complaints and criminal prosecutions: the difference between each individual’s ability to exercise a legally protected right to her or his own unique, private interests and the state’s power to maintain order in the interest of common well-being.
For sexual assault survivors are mere witnesses in criminal cases. Their private tragedies become indelible scrawlings in public records, while the nature and extent of their injuries are relevant not to determine what will make them whole but rather to quantify the defendant’s debt to the state.
Many years ago, I became just one among multitudes of individuals in this great democracy of ours who have been raped in the educational environment, subject to the kind of objectification that makes you want to scrub the two-dimensional stereotype your rapist stamped across your forehead from every cell in your body. Later, I became an attorney for the sole purpose of doing everything within the humble confines of my abilities to serve others whose Title IX rights have been trampled.
It is in this capacity that I urge you to give careful consideration to what the laws already in place will do to ensure justice when we begin to follow them.