On Monday, Senator Claire McCaskill held the second of a series of three roundtables discussing sexual assault on campus in Washington, D.C. Joined by Senators Jon Tester and Richard Blumenthal, the discussion centered on Title IX and featured what Senator McCaskill deemed a “diverse group of stakeholders,” including representatives from victims’ rights advocacy groups like Know Your IX, college administrators involved in Title IX compliance, and Acting Assistant Attorney General for Civil Rights Jocelyn Samuels from the Department of Justice.

Unfortunately, FIRE and other civil liberties advocates were absent from the two-hour discussion. Perhaps as a result of that absence, the tenor of the discussion with regard to student and faculty due process rights was often worrying. Several areas of the conversation deserve a closer look.

Return of the Blueprint’s Threat to Student and Faculty Rights?

During her introductory remarks, Acting Assistant Attorney General Jocelyn Samuels noted the University of Montana’s new policy governing sexual misconduct—adopted last May pursuant to a joint agreement between the university, the Department of Education, and the Department of Justice—as an example of the work her office does to combat sexual assault on campus.

Samuels began by criticizing the University of Montana’s previous policies and practices, noting, for example, that the university’s response to sexual misconduct was previously governed by eight separate policies. Now, a single policy governs. This is an important improvement, as multiple policies lead to confusion about what behavior is prohibited on campus. When overlapping and redundant policies govern student speech, for example, the resulting lack of clarity engenders a chilling effect on campus, as students uncertain about their rights simply choose to keep silent.

Worryingly, however, Samuels repeatedly identified the University of Montana resolution agreement as a “model” and a “template” for universities nationwide—a troubling characterization that contradicts previous statements from the federal government.

As Torch readers will remember, the Department of Justice and the Department of Education’s Office for Civil Rights (OCR) initially declared the University of Montana resolution agreement a “blueprint” for other institutions in announcing policy revisions the agencies deemed necessary for compliance with Title IX. But the agreement contained serious threats to student and faculty rights, including a shockingly broad definition of sexual harassment and a provision allowing for disciplinary action against a student or faculty member accused of sexual harassment prior to the completion of an investigation and hearing. Joined by civil libertarians, commentators, faculty, First Amendment experts, and even Senator John McCain, FIRE pointed out the serious threats to free speech and due process presented by the resolution agreement.

Following months of national criticism, OCR finally backed away from its initial characterization of the University of Montana agreement as a national model. The new policies adopted by the University of Montana (after a significant delay) did not track the blueprint’s broad definition of sexual harassment. Nor did policies adopted by the State University of New York system after it, too, reached a resolution agreement with OCR months after the Montana settlement. Similarly, a controversial section of the blueprint required faculty members to attend trainings on the university’s new policies, noting that those who failed to do so would have their names and titles reported to the Department of Justice. That requirement was also dropped after faculty protest.

Ultimately, the University of Montana agreement looked like it wouldn’t be much of a blueprint, after all. Indeed, in a November 2013 letter to FIRE, OCR’s new head, Catherine Lhamon, stated plainly that “the agreement in the Montana case represents the resolution of that particular case and not OCR or DOJ policy.” Given that explicit reassurance, it’s deeply disappointing to see Samuels repeatedly offer the terms of the University of Montana resolution agreement—some of which were never actually adopted as university policy—as a national model. Mixed signals from the DOJ and OCR are unhelpful and will only confuse universities about their obligations under federal law.

A Call for Legislatively Lowering the Davis Standard?

The roundtable also discussed the standard for institutional liability in lawsuits brought by students under Title IX’s private right of action.

In Davis v. Monroe County Board of Education (1999), the Supreme Court of the United States held that an institution could be held liable in a lawsuit for damages filed by a victim of student-on-student (or peer) harassment when the institution displayed “deliberate indifference” to “known acts” of harassment. In reaching this conclusion, the Court formulated a clear, narrow definition of peer harassment. The Court held that to avoid liability, institutions have a duty to respond to conduct “that is so severe, pervasive, and objectively offensive, and that so undermines and detracts from the victims’ educational experience, that the victim-students are effectively denied equal access to an institution’s resources and opportunities.”

FIRE strongly believes that, as the Supreme Court’s sole guidance on the substantive standard for peer harassment in education, the Davis definition of harassment remains the best definition for students, faculty, and colleges and universities. As FIRE and others explained in a 2012 coalition letter (PDF) to OCR:

Davis’ central benefit is its precise balance between a school’s dual responsibilities to prohibit harassment that denies a student equal access to an education and to honor freedom of expression. If merely “offensive” expression constituted harassment, then a student might be punished for telling a sensitive student a joke, reading a poem aloud, or simply voicing a dissenting political opinion. Instead, Davis requires the harassment not only to seem offensive, but to be objectively so. By incorporating this “reasonable person” element, the Davis standard frees campus discourse from the tyranny of the student body’s most sensitive ears, as well as those feigning outrage to silence viewpoints they dislike. Furthermore, by including both “severity” and “pervasiveness” requirements, Davis protects the dialogue we expect universities to foster in the search for truth. Under the Davis standard, heated discussion is acceptable, but the truly harassing behavior that federal anti-discrimination laws are intended to prohibit is not.

We are not alone in this assessment. Courts have struck down harassment policies that fail to include Davis’ objectivity requirement. Risk management firms like the National Center for Higher Education Risk Management have counseled institutions (PDF) to adopt policies consistent with Davis to ensure they withstand First Amendment challenge. Even OCR has signaled support for Davis, stating in its 2001 Revised Sexual Harassment Guidance that its definition of harassment is “consistent” with the Court’s in Davis and “intended to capture the same concept,” an understanding stated again last fall in Lhamon’s November letter to FIRE. Relatedly, a 2003 “Dear Colleague” letter from OCR on the First Amendment emphasized the necessity of evaluating harassment allegations “from the perspective of a reasonable person in the alleged victim’s position”—a close echo of Davis’s “objectively offensive” prong.

But participants in yesterday’s roundtable sharply criticized the Davis standard, arguing that it poses too high of a barrier to students seeking to file suit against institutions they believe have failed to appropriately respond to sexual assault. Senator McCaskill said the Davis standard’s requirement that harassment be “severe, pervasive, and objectively offensive” had “severely limited” students’ ability to file suit. Samuels described the standard as “a very stringent one,” and Lindy Aldrich, Deputy Director of the Victim Rights Law Center, noted that her organization had not brought a private suit under Title IX in its 11 years of existence. Senator Blumenthal said that was “very telling,” and Senator McCaskill suggested that the standard was “ripe for some legislation.”

FIRE will closely monitor any legislative initiative to change the definition of harassment the Court announced in Davis. As an initial reaction, however, it’s important for Senators McCaskill and Blumenthal to remember that the Davis standard is “stringent” because the First Amendment requires it to be.

One may wonder what the First Amendment has to do with it—after all, the roundtable yesterday focused almost exclusively on sexual assault, which is commonly understood as physical misconduct, not verbal conduct. But Davis concerns liability under Title IX, and federal courts and OCR have interpreted Title IX as prohibiting both sexual harassment and sexual assault as manifestations of gender-based discrimination. In other words, sexual harassment and sexual assault are two points along a spectrum of gender discrimination.

As a result, lowering the Davis standard in an effort to help students sue colleges they believe have turned a blind eye to sexual assault will also encourage lawsuits against colleges for failing to respond to verbal conduct alleged to be harassment. Faced with a weaker Davis standard, colleges will quickly promulgate more restrictive speech codes in an effort to defend themselves from expensive and embarrassing litigation. It’s an outcome FIRE knows is all but certain: Given the choice between fighting off a First Amendment suit or preempting a harassment lawsuit, colleges will ditch the First Amendment every time because harassment lawsuits cost more both financially and reputationally.

Senators McCaskill and Blumenthal should recall that the Court sought to avoid exactly this outcome when deciding Davis. The Davis dissent, authored by Justice Anthony Kennedy, warned of “campus speech codes that, in the name of preventing a hostile educational environment, may infringe students’ First Amendment rights.” Kennedy noted that “a student’s claim that the school should remedy a sexually hostile environment will conflict with the alleged harasser’s claim that his speech, even if offensive, is protected by the First Amendment.” In response, Justice Sandra Day O’Connor’s majority opinion in Davis was very careful to “acknowledge that school administrators shoulder substantial burdens as a result of legal constraints on their disciplinary authority.” Speaking precisely to Kennedy’s concerns, O’Connor reassured the dissenting justices that it would be “entirely reasonable for a school to refrain from a form of disciplinary action that would expose it to constitutional or statutory claims.” The majority’s careful, exacting standard was purposefully designed to impose what O’Connor characterized as “very real limitations” on liability, in part as recognition of the importance of protecting campus speech rights. Again, the Davis standard is “stringent” because the First Amendment requires it to be.

Moreover, conflating sexual assault and sexual harassment has serious policy consequences. FIRE believes that in order to best protect students and their rights, the two issues should be dealt with separately. As we’ve argued to OCR:

FIRE strongly believes that universities are better positioned to create fair and accurate sexual harassment policies and procedures when they address the issue of sexual harassment separately from the issue of sexual assault. While both sexual harassment and sexual assault constitute gender-based discrimination under Title IX, they present substantially different issues and challenges for a responding institution. Sexual assault is violent criminal behavior and often involves complex and fact-intensive allegations—challenges that colleges and universities typically struggle to deal with, and that, in the eyes of FIRE and other commentators, may be better left to law enforcement possessing the requisite expertise and experience. Sexual harassment, on the other hand, presents its own complications and concerns, including the issue of potentially protected speech. At minimum, institutions should maintain separate standards for each offense.

If lawmakers choose to explore liability standards for private rights of action under Title IX, they should do so knowing that any resulting infringement upon student expressive rights will be subject to a prompt constitutional challenge in federal court.

Doubling Down on the Lowest Standard of Proof

The roundtable’s participants discussed the burden of proof used by college and universities in campus sexual assault hearings. By now, Torch readers know that on April 4, 2011, OCR issued a “Dear Colleague” letter (DCL) instructing institutions of higher education that they must adjudicate sexual assault hearings using our judiciary’s lowest standard of evidence, the preponderance of the evidence standard. According to OCR, institutions using any other standard are not in compliance with Title IX and thus risk losing federal funding. FIRE’s longstanding disagreement with OCR about the preponderance of the evidence standard is well-documented.

FIRE has also argued that the DCL violates the Administrative Procedure Act and is thus invalid because its provisions constitute substantive rulemaking but were enacted without public notice and comment. Nevertheless, the vast majority of universities have (understandably) treated it as binding diktat. But in a fascinating exchange with the American Association of University Women’s of Government Relations Manager, Anne Hedgepeth, Senator McCaskill seemingly acknowledged that the DCL’s preponderance mandate lacked the force of law. Here’s the transcript of the exchange:

Hedgepeth: The VAWA Amendments to Clery [Jeanne Clery Disclosure of Campus Security Policy and Campus Crime Statistics Act], for example, require schools to disclose the standard of evidence they are using on campus. We will now know which schools are not using the preponderance of the evidence standard and we can do something about that. So, I want us to think also… Senator McCaskill: Should we legislate that? Hedgepeth: I think it’s important to remember that it is the law of the land. It is in guidance right now under Title IX. Senator McCaskill: But that is not the law. It’s guidance. Hedgepeth: Well… Senator McCaskill: I won’t ask Miss Samuels to comment. I will tell you this. There are some hard-headed folks—I won’t look at Jon Tester when I say that—but there are hard-headed folks who say guidance from the federal government is not necessarily very persuasive if they want to follow another path. We need to codify it if we want it to be enforceable. Hedgepeth: I agree with you, and especially if we want it to be—to last forever and not change with administrations.

This back-and-forth is noteworthy for two reasons. First, it confirms that lawmakers agree with what we at FIRE have been saying for a while now: The April 4, 2011, Dear Colleague letter does not have the force of law. And second, it unambiguously reveals that Senator McCaskill is, at least at the moment, determined to change that. And while Senator McCaskill can certainly count us amongst those unconvinced that the preponderance mandate is good policy, we hope to have an opportunity before legislation is drafted to explain to her directly why we feel so adamantly that the use of the preponderance of the evidence standard in campus disciplinary hearings unacceptably increases the risk of error.

An Area of Agreement: The Role of Law Enforcement

Some have suggested that an important reason to make guilty findings as easy as possible in campus courts is that the criminal justice system does not do a competent job of prosecuting rape cases. Indeed, during the roundtable, John Kelly, Special Projects Organizer of Know Your IX, argued that sending victims of rape on campus to the criminal justice system “might be dangerous.” In response to suggestions from Senators Blumenthal and McCaskill that the criminal justice system has a role to play in dealing with campus sexual assault, Kelly disagreed “because it’s a system that hasn’t been good.”

Like most Americans, FIRE believes that college tribunals have failed when it comes to handling campus sexual assault. Indeed, in a recent YouGov poll, only 17% of Americans trusted colleges and universities “a lot” to properly handle reports of rape, sexual assault, or harassment, versus 37% who trusted law enforcement “a lot.” We believe that only actual courts and professional law enforcement are likely to have the tools, training, and adequate procedures to make accurate determinations of guilt and effectively punish offenders.

On this point, we agree with Senator McCaskill, who noted that there are “thousands of prosecutors across the country that handle these cases with skill, professionalism, and a great deal of sensitivity. … I can’t sit here and just with a broad sweep say that criminal prosecution across this country is ham-handed and ineffective and unprofessional in terms of dealing with victims’ needs because I personally know that’s not the case.” She went on to say that college students may not realize that “there are men and women across this country who have dedicated their lives to effectively prosecuting these types of crimes and to protecting victims’ rights in the process.”

Senator McCaskill’s third roundtable is intended to explicitly discuss the relationship between law enforcement and campus sexual assault. FIRE has asked Senator McCaskill to include us in that event in order to provide a civil libertarian perspective.

Of course, we’ll keep you posted here on The Torch.