The U.S. Department of Education Office for Civil Rights (OCR) is about to release proposed rulemaking governing complaints of sexual misconduct under Title IX. While the Title IX regime has long afforded educational institutions discretion in handling many procedural aspects of sexual misconduct complaints, the OCR’s new rulemaking will almost certainly expand those choices, allowing, for example, institutions to elect the standard of proof governing a complaint. These new choices place even greater weight on an old choice under Title IX—whether to have internal resources such as professors and students adjudicate sexual misconduct complaints or to retain professional, external adjudicators
The new rulemaking will in all likelihood embody OCR’s September 2017 Q&A on Campus Sexual Misconduct, which replaced the Obama-era policies in OCR’s 2011 Dear Colleague Letter and 2014 Questions & Answers. The Q&A contained several key modifications, three of which are particularly relevant to this discussion. First, and most significantly, schools have a choice to keep the legacy preponderance of the evidence standard for discipline determinations or to adopt a heightened clear and convincing evidence standard. Second, schools are no longer required to offer appeals, and schools can also opt to restrict the right to appeal to either the complainant or the accused. Finally, schools can allow mediation of sexual assault complaints, provided all parties consent.
Whether schools opt to keep the current standards or to impose a clear and convincing standard of proof coupled with no right of appeal, they are a making a choice. And that choice will be viewed, fairly or not, as a choice between policies that either favor or disfavor complainants or those accused of sexual misconduct. That choice is being made at a time when the #MeToo movement has helped put sexual misconduct issues at the forefront of public discourse; a time in which, not unsurprisingly, there has been an uptick in sexual misconduct complaints across educational institutions. See, e.g., Lena Felton, “How Colleges Foretold the #MeToo Movement,” Atlantic, Jan. 17, 2018, at 2 (“The Harvard Crimson last month reported that the institution has seen a 20 percent increase in sexual-harassment complaints since the allegations against Weinstein surfaced in October.”).
Of course, even before the #MeToo movement, many high-profile educational institutions had found themselves earning unwelcome headlines for violations of Title IX arising from procedures dealing with sexual assault. Student protests have attacked procedures that students find to be inadequate and unresponsive to assault complainants. For instance, in the “Carry That Weight” performance piece, Emma Sulcowicz carried the dormitory mattress on which she was assaulted around Columbia University’s campus as she went to class. This piece instigated a broader array of students and activists who are articulating a movement to support sexual assault survivors and attack what is known as rape culture, a concept covering cultural assumptions about men and women that include focusing on the behavior of victims rather than perpetrators when addressing the problem of sexual assault.
In this context, I suggest several reasons why external professional neutrals may be a better choice for adjudicating complaints of sexual misconduct than relying on internal enlistees, such as administrators, professors, and students.
First, the use of independent professional neutrals can act as a bulwark against perceived bias emanating from either school policy choices or the impact of the #MeToo movement. With respect to the former, whether a school chooses to retain Obama-era standards of proof and appeal rights or adopts the clear and convincing standard, it is a choice with consequences. By incorporating external, independent neutral adjudicators into their Title IX policies and procedures, schools can assure stakeholders that decisions will be reached fairly and on the merits, regardless of other choices the school has made. This can also have the effect of insulating the rendered decisions—and the institutions and their programs—from scrutiny by third parties and participants alike. Which is to say, if done right, the use of external neutrals can serve to build trust in the program. An outside adjudicator is a true neutral who can act without having his or her rulings imputed to the school, thus offering a layer of insulation against any accusations of bad motives.
Second, professional external adjudicators, many of whom are former judges, know how to maintain control over a proceeding and have the requisite legal understanding to apply the appropriate standards of evidence and burden of proof (whether it be preponderance of the evidence or the clear and convincing standard). This knowledge and ability is not merely about decorum or legal formalities. In April 2014, the White House Task Force to Protect Students from Sexual Assault published a report titled Not Alone. On the issue of adjudication, the report stated that “[m]any sexual assault survivors are wary of their school’s adjudication process—which can sometimes subject them to harsh and hurtful questioning (like about their prior sexual history) by students or staff unschooled in the dynamics of these crimes.” The report also summarized guidance stating that “questions about the survivor’s sexual history with anyone other than the alleged perpetrator should not be permitted; adjudicators should know that the mere fact of a previous consensual sexual relationship does not itself imply consent or preclude a finding of sexual violence; and the parties should not be allowed to personally cross-examine each other.”
Professional adjudicators are field-tested in deciding what evidence will be allowed to influence the proceeding and its outcome, in measuring countervailing values in light of the rules and the values that give them strength. From the perspective of both the victim and the accused, the adjudication is crucial. Thus, it is important not only that the process be calculated to maximize truth finding but also that it be both solemn and humane. Former judges have years of experience in handling emotionally intense disputes with sensitivity and civic authority. An individual external adjudicator can more readily set an appropriately solemn and compassionate tone than a panel of adjudicators, especially a panel that includes students. Although student involvement in aspects of college planning and administration is generally commendable, sexual assault adjudications are both emotionally fraught and legally complex, and students should not be called upon to oversee such a process. An experienced lawyer or former judge is in the best position to preside with the appropriate demeanor to set a tenor of mutual respect and seriousness. Participants in such a process will be more likely to respect the adjudication’s outcome, whatever it may be, if they feel that the process was sober, respectful, and professional.
Likewise, professional adjudicators are uniquely able to manage attorneys who appear before them and assess the merits of their legal arguments. Under the Clery Act, both the accuser and the accused have the right “to be accompanied to any related meeting or proceeding by an advisor of their choice” during any “institutional disciplinary hearing.” The Department of Education has clarified that this right “clearly and unambiguously” includes the option to be advised by an attorney. Although attorney advisors will not necessarily have the ability to question parties and witnesses directly, depending on the procedures that schools adopt for sexual assault adjudications, the participation of such advisors may have the effect of nudging those proceedings in the direction of formality and legal precision.
The involvement of lawyers increases the odds that the boundaries of the applicable regulatory regimes will be explored to their limits. External adjudicators have the experience and knowhow to work with attorneys in order to maximize the truth-determining ability of a tribunal and to minimize chicanery and complication. It is also important to consider that while the proceeding is a disciplinary one and not in a court of law, nevertheless where lawyers are involved former judges have greater standing and experience in dealing with them.
Third, an adjudicator with a legal background is much more likely to be able to make sure that campus proceedings remain in compliance with all applicable law, including state law. Several states mandate that parties to an on-campus disciplinary proceeding have the right to an attorney, and state laws affect these proceedings in other ways. The complex intersection of multiple regulatory regimes does not just have implications for the structure of the proceedings; the details of the proceedings themselves also need to comply with all applicable laws.
Finally, successful mediation, especially in a context fraught with emotion, is an exceedingly difficult task. In my broad experience as a mediator, I find that no matter how simple a dispute may seem, its parties usually bring a more emotionally laden perspective. Again and again, I have been called upon to calm nerves and deploy emotional leadership. Where parties are truly at odds as to what happened and who is to blame, this leadership is more essential than ever.
Professional mediators, including those who work in family court and similar contexts involving trauma, have specialized training and years of experience. If mediation is permitted, a trained professional is far better equipped to resolve matters with great care and to avoid causing further harm.
In sum, with the release of the September 2017 Q&A and the imminent release of OCR rulemaking, school leadership have been taking stock and choosing between policies and procedures that they believe best serve the students and institutions they support. Given the social climate in which these choices are being made, it is equally important to revisit the choice of whether to rely on internal resources or, instead, to rely on external professionals to adjudicate sexual misconduct complaints.
Hon. Jane Greenspan (Ret.) is a retired justice of the Supreme Court of Pennsylvania and a JAMS neutral, based in Philadelphia, Pennsylvania.
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