If They Don’t, Fairness Will Continue To Erode
In 2011, the Department of Education’s Office for Civil Rights (OCR) augmented the scope of Title IX in an attempt to combat sexual violence on campus. This was a laudable goal, to be sure, as sexual misconduct on campus is something that must be combated. But at what cost should such combat occur?

According to Clark Conner of The Clark Conner, “OCR’s then-assistant secretary for human rights, Russlynn Ali, issued a “Dear Colleague” letter  that effectively turned university administrators into amateur gumshoes tasked with investigating sexual misconduct. And many universities, at risk of losing federal funding or being referred to the Department of Justice for litigation, began devoting more resources to regulatory compliance.”

As Conner details, the 2011 Title IX expansion has imposed unnecessary financial burdens on universities across the country. At the University of North Carolina system, for example, there are now at least 80 employees related to Title IX, the majority of whom are focused on enforcing the Dear Colleague letter. North Carolina State University (NCSU) identifies four Title IX representatives on its website. However, it also lists three offices with direct or indirect Title IX responsibilities: the Office for Institutional Equity and Diversity, the Women’s Center, and the Office of Student Conduct. That doesn’t include the counseling center, which also fulfills Title IX requirements.  Conner reports that NCSU’s Office for Institutional Equity and Diversity and Women’s Center account for 17 employees, four of whom have six-figure salaries; the highest-paid earns $190,000 per year. Staffing costs for just these two departments total more than $1.2 million each year.  Conner goes on to cite the Martin Center who reported last year, that universities spend millions each year navigating a labyrinth of new federal regulations (many of which are related to Title IX). Based on some cost estimates, the UNC system could be spending roughly $500 million each year, or $2,500 per student, on federal compliance alone.

Many who follow this issue have suggested that the 2011 Dear Colleague letter caused a severe over correction in attitude and action by many colleges who were perceived to be cavalier about reported acts of sexual misconduct on campus.  I am one who would argue once a college or college system has decided to devote millions of dollars to hire high priced administrators to “correct” any misperceptions about its historical attitude and response to an issue as serious as sexual misconduct on campus, that college or college system had better produce statistically measurable results, confirming their new attitude, and which includes their swift responses to complaints, a zero tolerance attitude and harsh punishment.  And as might have been predicted, if not expected, schools across the country have produced such statistics, albeit at a cost to the reputations and futures of students who have complained of misconduct, or (with greater frequency) who have been accused of such misconduct.

As Conner observed in his article, advocating for some reform in the procedures associated with responding to complaints, “[c]urbing federal regulatory excess would do more than just stem the tide of compliance-related administrative growth, however. It would also act as a check against university administrators, some of whom, in recent years, have denied due process rights to those accused of sexual offenses on campus.” He writes “[n]ot surprisingly, much of that administrative misconduct has come as a result of the 2011 Dear Colleague letter, which says police investigations ‘may be useful’ but not ‘determinative of whether sexual harassment or violence violates Title IX’.” “Further, it says that a school ‘should not delay conducting its own investigation or taking steps to protect the complainant because it wants to see whether the alleged perpetrator will be found guilty of a crime’.”

He goes on to observe “[w]hat this means in practice is that in some cases, Title IX bureaucrats can review—and act on—“evidence” that is frequently as scant as “he said, she said.” And at the conclusion of an investigation school officials are commanded to decide the case based on the lowest possible burden of proof, the preponderance of the evidence standard.

Unfortunately, some campus officials seem indifferent to the problems inherent in this system as do many victims advocacy groups. In the same NPR interview in which she acknowledged that new OCR mandates were driving up costs at UNC Charlotte, Susan Burgess said flippantly, “There may not be witnesses to the incident and with the lower standard of preponderance of evidence, it’s easier for us to adjudicate a case between two individuals where one is accusing and the other is denying.”

So the question presented to all of us who care about students on college campuses is this—at what cost is combatting a serious problem like sexual misconduct on campus, acceptable to us?  We demand due process and fairness in all other areas of our lives, and in particular, in settings where we might lose our liberty or a valuable property or economic right.  Are we ok allowing educational bureaucrats to make life altering decisions about students, without ensuring fairness and due process for accusers and accused, alike?   Are we ok with a flippant statement by a prominent college administrator that it is ok to do what is easiest in adjudicating complex matters of sexual misconduct allegations, in lieu of full and fair investigations and neutral considerations of evidence that should be viewed as minimum requirements, and not a burden for adjudicating the rights of anyone?

Let us know what you think!