Two recent findings from the federal government regarding how school’s handle campus sexual assault cases have had a disturbing similarity: Both schools were faulted for not investigating an accusation even when the accuser didn’t want it investigated.
At Michigan State University, the Department of Education’s Office for Civil Rights determined the school failed to provide a “prompt and equitable” response to an accusation because it failed to investigate an informal complaint — one where the accuser chose not to go through the school process of a formal hearing. Now the same accusation (among others) has been made against the University of Virginia.
U.Va. was found in violation of Title IX because, among other things, OCR determined it hadn’t handled 22 out of 50 reports of sexual harassment and assault between the 2008-2009 and 2011-2012 school years. When U.Va. President Teresa Sullivan was asked about those cases by the Washington Post, she noted that each of those 22 cases involved students who didn’t file a formal complaint or want to go through the procedure for what are technically known as “informal” complaints.
OCR also looked specifically at 87 informal reports made during the 2012-2013 school year, and found that 29 cases raised “concerns” about whether the university investigated those reports or determined whether it should in order “to prove a safe and nondiscriminatory environment” for students. The school was supposed to investigate accusations even where it went against the accuser’s wishes.
“Without some type of an investigation of reports of sexual misconduct, the university does not know what steps would be appropriate to resolve any violations of Title IX, including its obligation to remedy any hostile environment that may exist, including for the broader university community where appropriate,” OCR wrote.
So, we have students who didn’t want the university to do anything, and the university is being faulted for following those wishes? As I wrote when discussing the MSU finding, sexual assault activists continuously stress the need for accusers to be in the driving seat of these investigations. OCR is contradicting that principle, telling schools to open investigations even when accusers say they don’t want one.
This notion of investigating against a victim’s wishes is not necessarily absurd — after all, failure to do so could result in a rapist finding a new victim. But if colleges are expected to investigate such charges even when victims don’t want it, then what rationale remains for not involving the police or the civil court system in all such cases, and simply bypassing university discipline proceedings?
Despite the university not investigating these claims, it did take interim measures to support accusers, which apparently wasn’t good enough for OCR.
Another problem OCR found with U.Va. regarding campus sexual assault claims was a single interview made by an administrator identified by the Washington Post as Associate Dean Nicole Eramo (you may remember her from her lawsuit against Rolling Stone). OCR claimed that this single radio interview created a “hostile environment” for students. Eramo, who was not named in the report, was responding to questions about why students had not been expelled for sexual assault.
One thing Eramo said in that interview was that the hearing panel was not comfortable permanently expelling a student if they were only 51 percent sure the assault happened. Former Education Department attorney and current Competitive Enterprise Institute attorney Hans Bader, in an email to the Washington Examiner, provided two court cases as examples of private employers not being required to fire or even discipline employees accused of harassment when there is just a 51 percent chance of guilt.
In Knabe v. Boury Corp, the federal appeals court in Philadelphia found that “an employer, in order to avoid liability for the discriminatory conduct of an employee, does not have to necessarily discipline or terminate the offending employee.” In Swenson v. Potter, another appeals court (the Ninth Circuit) reversed a jury verdict by ruling that the accuser’s claim was too murky to warrant discipline from the employer and that the accused didn’t do anything to the accuser after he had been investigated.
Bader also noted that “implicit in Eramo’s remarks was the idea that if evidence was overwhelming (say, a 90% chance of guilt, rather than 51%), they might be expelled.”
One thing that OCR faulted U.Va. for that is actually beneficial for the future of these cases is the acknowledgement that the same person should not be responsible for being an advocate for the accuser and an allegedly impartial decision-maker. This gave the hearings the appearance of a conflict of interest, according to OCR.
This has been one of the major complaints from due-process advocates in the past. Too many schools forgo any semblance of fairness by having a single person coordinate the investigation, the hearing and punishment at the same time they are supposed to be advocating for the accuser. Under such a model there is no way for the accused student to get a fair hearing, as they are already prejudged by the school’s policy.
The message from OCR to schools is becoming clear with these recent Title IX rulings: Investigate everything, even against the student’s wishes, or else.
