Title IX, sexual violence, and the preponderance standard
On Dec. 10, 2012, President Pamela Gann announced in an email to the student body that Claremont McKenna College had revised its sexual violence grievance procedures in accordance with a “Dear Colleague Letter (DCL)” issued by the Department of Education’s Office of Civil Rights (OCR). The OCR distributed the letter to all educational institutions in the United States that receive federal funding.
The DCL addresses Title IX of the Education Amendments of 1972, which (as summarized by the letter) “prohibit[s] discrimination on the basis of sex in educational programs or activities operated by recipients of Federal financial assistance.” The letter states that sexual violence, in addition to sexual harassment, is a form of sex discrimination prohibited by Title IX.
The DCL stipulates numerous Title IX requirements to which recipients must adhere in investigating complaints of sexual violence. It requires that colleges and universities adopt and publish grievance procedures providing “prompt and equitable” resolution of sex discrimination complaints on campus.
As other educational institutions have done, Claremont McKenna revised its sexual violence grievance procedures in response to the DCL. In her email to the student body, President Gann wrote that these revised procedures “reflect our commitment to creating a safe community in a manner that is consistent with the law and which offers a fair and neutral process to all parties involved.”
Whether these procedures are, in fact, truly fair and truly neutral, is up for debate.
Of primary concern is the DCL’s requirement that schools use the preponderance of the evidence standard of proof in evaluating complaints of sexual violence. The preponderance standard is met if, evidence considered, it appears more likely than not (a greater than 50 percent probability) that the offense occurred. The DCL states explicitly that schools are not to use the clear and convincing standard (i.e. it is highly probable or reasonably certain that the assault occurred).
Federal civil courts use the preponderance standard in evaluating complaints. The DCL specifically notes that the Supreme Court uses the preponderance standard in civil cases involving discrimination under Title VII of the Civil Rights Act of 1964, a statute which likewise prohibits sex discrimination.
The OCR reasons that since the preponderance standard is used in federal civil cases involving sex discrimination, it is the appropriate standard for college and university sexual violence grievance procedures.
CMC’s Grievance Procedures
CMC’s revised Civil Rights Policies and Civil Rights Grievance Procedures are posted to the college’s website.
The document explains that complaints of alleged sexual assaults on campus shall be forwarded to the college’s Title IX Coordinator, who currently is Dean Mary Spellman. The Title IX Coordinator appoints an investigator trained in the college’s grievance procedures to conduct a “thorough, impartial, and prompt investigation of the complaint.” The investigator conducts interviews, gathers evidence, prepares a report of the investigation, and makes an appropriate finding based on a preponderance of the evidence.
If the Investigator determines by a preponderance of the evidence that the respondent, the individual accused of the violation, did commit the sexual assault, the respondent may accept the findings or reject the findings (or accept them in part and reject them in part).
If the respondent rejects the findings in full or in part, the Title IX Coordinator forwards the complaint to the “Hearing Board” (the “Board”). The Board’s task is to conduct a hearing to provide an “equitable resolution via an equitable process.”
The Board consists of three persons appointed by the Title IX coordinator “selected from the members of the Investigator pool who were not involved in the original investigation and faculty who have been trained to review Civil Rights complaints.” The Title IX Coordinator designates one of the three individuals as “Chair” for the hearing. It is the responsibility of the Board to determine, by a preponderance of the evidence, whether the defendant is guilty of committing the sexual offense, and to recommend the appropriate sanctions to be imposed upon the individual. For students, the possible sanctions are “up to and including suspension or expulsion.”
As articulated previously, the Office of Civil Rights justifies its requirement that colleges and universities use a preponderance standard in sexual violence grievance procedures because it is the standard used in federal civil cases involving discrimination. However, the OCR appears to disregard the significant differences that exist between campus grievance procedures, such as CMC’s Hearing Board procedures, and those of the federal civil system.
CMC Professor of Government and Ethics Joseph Bessette has studied both the Dear Colleague Letter and CMC’s revised grievance procedures in depth. He raises concerns about using such a low standard of proof in CMC’s grievance procedures: “What I find striking is that although it’s true that preponderance of the evidence is the regular standard of proof in civil courts throughout the United States, federal and state civil courts, there are so many differences between the rights that the respondent has in [civil] courts compared to [CMC’s] procedures that it really raises in my mind the question of whether preponderance of the evidence is the proper standard.”
In an interview with the Claremont Independent, Bessette identifies eight significant differences between federal civil trials and CMC’s sexual violence Hearing Board procedures that, in his opinion, “argue strongly either for changes in the [college’s] procedures,… a higher standard of proof, or both.”
First. Bessette explains that a judge, who is an expert in the law, presides over all federal civil court cases. No judge-like figure presides over CMC’s Hearing Board procedures. Although the Chair shall be trained in the college’s Title IX grievance procedures, he or she will not, unless by chance, have extensive legal training. Further, the Chair is still a member of the Board that both conducts the disciplinary hearing and determines guilt.
Second. Bessette notes that the federal civil system adheres to extensive and detailed rules of evidence intended to protect the accused. The CMC grievance procedures include provisions stating that that the use of alcohol or drugs may not function as a defense, that sexual orientation and/or gender identity “is not relevant to allegations,” and that the past sexual history of a party and the respondent’s prior policy violations will not be generally admissible. However, the procedures nonetheless fail to address other vital protections regarding evidence—such as rules excluding hearsay.
Third. The federal civil system is bound by “discovery” laws, which allow each party in the case to obtain evidence from the opposing party by judicial compulsion. CMC’s procedures do not include the right to discovery.
Fourth. The civil system guarantees respondents the right to an attorney who may act as an advisor during the proceeding. CMC’s grievance procedures specify that legal counsel is not permitted in Hearing Board grievance procedures “except in cases in which any party to the grievance faces potential criminal charges or if required by applicable law.” Thus, in cases of sexual violence, of which the defendant faces potential criminal charges arising from the same set of evidence, the defendant may hire an attorney. The guidelines state, however, that “In such cases, an attorney will only be permitted in a non-participatory advisory role for the Complainant and/or Respondent at that individual’s expense” (emphasis added).
Bessette notes that a non-participatory attorney certainly does not play the same role as would legal counsel in civil court: “That means the attorney cannot, I take it, speak out in the hearing itself. He can be sitting there, because it’s a potential criminal case, but can’t actually [participate]. I don’t know what advisory role means if you’re not participating… But it’s clear that you’re not playing the same role that your attorney would play in a real civil trial.”
Fifth. In the federal civil system the burden of proof falls on the complainant. Just as defendants in criminal cases don’t have to prove their innocence, respondents in civil cases don’t have to prove that they are not at fault. CMC’s grievance pro- cedures, however, nowhere specify that the burden of proof falls upon the complainant. “Even though the standard of proof [in a civil case] is low, 51% / 49%, the complainant still has to prove his or her case… And there’s no such language in the CMC rules that I can see that puts the burden of proof on the complainant.”
Sixth. In a civil trial, the defendant has the right to see all the evidence and to cross examine the witnesses. CMC’s grievance procedures, on the other hand, don’t actually require that the complainant or respondent even appear at the Hearing Board procedures. Although the explanation of the Hearing Board procedures seems to assume participation, the document states several pages later that complainants in CMC grievance proceedings retain the right “To participate or decline to participate in the grievance process related to a discrimination, harassment, and/or sexual misconduct complaint with the understanding that the process may continue without their involvement and that the Investigator and/or Board will determine an outcome with the information available to it” (emphasis added). The document similarly states that respondents have the right to “participate or decline to participate in the review procedure, with the understanding that the process will continue regardless…”
Bessette says, “Now as I read that, that means you can be accused of some really serious misconduct by a person, and that person doesn’t necessarily have to appear and make the case in front of you and be cross-examined by you.”
Seventh. Bessette explains that federal civil trials have a minimum of six jurors and that at-fault verdicts must typically be decided unanimously. In CMC’s grievance procedures, however, just three members of a Hearing Board determine the guilt of the defendant. CMC’s procedures do not specify that the Board must determine guilt unanimously; it simply states that the Board will “determine an appropriate finding based on a preponderance of the evidence.” Bessette notes that the document’s failure to explicitly require unanimity implies that only a two thirds majority is necessary to determine guilt, asking rhetorically, “How much easier is it to ‘prove’ an accusation if you only have to persuade two out of three people that it’s slightly more likely [that the offense occurred] than to convince six people?”
Eighth and last, Bessette notes that federal civil cases are almost always open door, unless they involve serious matters of national security. Bessette explains that public trials serve to protect the accused: “If a defendant or a respondent is being mistreated some way by the process, the public can witness that… It’s a protection to an individual who is accused of something.” CMC Hearing Board procedures, on the other hand, are closed-door, offering no such public oversight. The grievance procedures state, “Board hearings are closed. The hearing itself will be recorded but not the deliberations. The recording will be destroyed after the appeal period has been exhausted.” The guide specifies that the complainant and respondent may listen to the recordings, but does not say whether they will be available to members of the CMC community.
To summarize—CMC’s Hearing Board procedures do not include a judge-like figure, specify proper rules of evidence to protect the accused, delineate rights to discovery, grant the defendant the right to an attorney who may participate in the hearing, specify that the burden of proof falls upon the complainant, permit the defendant to be confronted by and cross-examined by the complainant, require a unanimous jury of six to determine guilt, or open Hearing Board procedures to the oversight of the CMC community.
That CMC’s sexual violence grievance procedures lack so many of the legal protections afforded by the federal civil system argues strongly for a higher standard of proof, changes to the procedures, or both.