Imagine if you could be expelled from your dorm, or a class, just because someone accused you of something -- even if the accusation was so weak or thinly-grounded that it never even led to a disciplinary hearing against you, or the complainant was unwilling to even let you have the opportunity to clear your name. Such "interim measures" by colleges seem to be what the Education Department recently required of Tufts University in Massachusetts, as a condition of settling a Title IX investigation against it after it found a student not guilty of sexually assaulting a classmate who denied those charges, after he convinced it that the complainant was not credible and had clearly lied about her medical history. If Tufts didn't agree to the settlement, the Education Department could have cut off all federal funds to the University -- millions of dollars -- and all federal financial aid to its students could have been terminated. So the settlement was not exactly voluntary. (Tufts tried to back out of the settlement, but knuckled under due to adverse publicity and the risk of huge financial losses.)
The Education Department's demands violate due process rights. Although Tufts is a private university, the government cannot force a private institution to take an action that would constitute a due process violation if engaged in by a government institution. See Merritt v. Mackey (1987).
The settlement, on page 9, paragraph 15, requires an “an explicit assurance that the University provide interim measures during the course of a complaint, or a university-initiated investigation; an explicit statement that interim measures are available even if the complainant does not file or continue to pursue a complaint.” But taking "measures" against someone can violate due process even when the measures are not criminal and designed to protect the complainant rather than harm the accused, especially when the measures are not brief and limited to the time needed for a prompt hearing on whether the accused really is guilty or innocent. (For example, in Sacharow v. Sacharow, the New Jersey Supreme Court ruled that a father accused of domestic violence had a right to defend himself before his ex-wife was put into the Address Confidentiality Program, which would have made it more difficult for him to maintain his relationship with his child. In Tyree v. Evans, the D.C. Court of Appeals ruled that a man was entitled not only to the opportunity to defend himself against domestic violence charges before a year-long restraining order could be granted to his accuser, but also the ability to cross-examine her.)
What are these "interim measures" the Education Department speaks of? As explained below, it includes things like excluding the accused from a classroom or dorm he shares with the accuser. So applying such interim measures even if the complainant does not file or continue to pursue a complaint could result in them continuing indefinitely, and could result in the accused being excluded from classes or dormitories without ever having any opportunity to defend himself, in blatant violation of the Constitution's due process clause.
Disturbingly, the Education Department's Letter of Findings never even discussed the possibility that the accused student might be innocent, as the university fact-finder found, even as it asserted, without any analysis of the evidence, that the lack of measures against the accused “resulted in the continuation of a sexually hostile environment for the Student.” (pg. 23). Instead, it complained that the university allowed in potentially exculpatory evidence, rather than rigidly applying deadlines or exclusionary rules, writing that "The University allowed consideration of the Student’s medical history, contrary to the applicable policies, even after the Accused was found to have obtained the Student’s confidential medical information by misrepresenting himself as a University medical student; and the University repeatedly modified existing procedures in a manner that benefited the Accused, including by allowing the Accused to submit an Addendum to his response on July 28, 2011, and allowing him to include details of the Student’s sexual history" (pp. 21-22). The way the accused obtained the complainant's medical information would certainly be a basis for disciplining him for invasion of privacy, but not for finding sexual harassment, much less blaming the college (or finding a Title IX violation), since if the accused was innocent of sexual harassment and assault, he by definition can't have created a "sexually hostile environment" for her.
The Education Department's settlement with Tufts is even worse. It requires Tufts to revisit all past disciplinary proceedings through 2011, which could lead to punishment of someone previously found not guilty (double jeopardy in all but name); it promotes anonymous investigations; and it approves changes to Tufts' harassment policy requiring “a statement that the alleged misconduct does not have to be ‘directed at’ a specific person or persons to constitute harassment” which means consensual speech between students can be banned as harassment when it is overheard by a third party who disagrees with it (raising serious First Amendment problems under court rulings like Rodriguez v. Maricopa Community College, which ruled that academic speech can't be banned as harassment when it is not aimed at the complainant). See Voluntary Resolution Agreement, Tufts University, Complaint No. 01-10-2089, at p. 16 (reopen past investigations and complaints), p. 6 (need not be "directed at" complainant), p. 9, paragraph 15 (anonymous complaints).
The interim measures that the Education Department demands have serious due process consequences for accused people. (Under pressure from its Office for Civil Rights, colleges are now routinely expelling students who are very likely innocent of sexual harassment or assault, see here, here, here, here, here, here, and here.)
As the Education Department explains on pp. 21-22 of its letter of findings regarding Tufts, declaring it to have violated Title IX:
The University also failed to provide the Student with effective interim measures during the eighteen months that followed her January 2010 report that she had been sexually assaulted. While the University issued a stay-away order to prevent the Student and the Accused from communicating with each other, the University’s policies and procedures at the time did not include any mechanism to enforce physical separation of students unless/until there was an actual finding in a case or a court order required separation. The Student therefore obtained a court-ordered restraining order in February 2010 that the University enforced in the residence hall by requiring the Accused to move out of the residence hall and allowing the Student and the Accused to alternate attendance at the Program’s weekly seminar. After this restraining order was vacated, the University initially required the Student to attend weekly Program seminars for the Fall semester together with the Accused or risk expulsion from the Program, and then permitted her to miss the seminars altogether without penalty, which resulted in her not attending any Program seminars in the 2010-11 academic year. Furthermore, the University did not inform the Student that she could request to move out of her residence hall for several months after she isolated in her residence hall room in the first part of 2010 until the Accused was required to move out of the residence hall and also reported being harassed by other students. Because of the arrangements made by the University, the Student was denied the opportunity to attend and participate fully with other students in the Program seminar, first when she alternated attendance at the seminar with the Accused in the Spring 2010 and then when she did not attend the seminars in person at all in the Fall 2011. In both instances, the University’s response deprived the Student of educational benefits offered to other Program students. Moreover, because of her continued concerns about not feeling safe on campus, the Student accelerated her education and graduated a year early. . . .
The Student was thus exposed to close physical proximity to the Accused and to harassment in the residence hall for several months. . .The interim measures provided by the University deprived the Student of an equal opportunity to participate with other students in the Program by first alternating her attendance at the weekly seminars with the Accused and then making arrangements in the Fall 2010 under which she did not participate at all in the seminars. . .The University’s failure to provide effective interim protective measures for the Student and, instead, placing the burden of interim measures largely on the Student was contrary to the requirements of Title IX to provide effective interim measures that minimize the burden on complainants of sexual harassment/violence.
See Letter from Thomas J. Hibino, Director, Region 1, Office for Civil Rights, U.S. Department of Education, to President Anthony P. Monaco, President, Tufts University, re: Complaint No. 01-10-2089.
Colleges may already have had potent financial incentives to expel potentially innocent students, even without recent pressure from the Office for Civil Rights (I explained earlier why the Office for Civil Rights was wrong to force colleges to lower the standard of evidence in campus sexual harassment and assault proceedings in its April 4, 2011 "Dear Colleague" Letter, and wrong to tell them not to allow cross-examination by the accused).
For example, see this discussion at Andrew Sullivan's Daily Dish:
Not only have people successfully sued for a million dollars or more under Title IX and its sister statute, Title VI (which deals with racial harassment), as in the Zeno case, but the Education Department’s Office for Civil Rights does in fact effectively impose sanctions on schools even when it doesn’t cut off their federal funds, since it sometimes conditions the end of the investigation on a resolution agreement that contains monetary compensation for victims.
For example, Tufts recently agreed to provide “monetary compensation” for a complainant, despite denying any wrongdoing, although it balked at an Education Department demand that it also declare itself in violation of Title IX: “Tufts signed an agreement with the government earlier this month, pledging to take a long list of steps in improving their policies, as well as providing monetary compensation to the student.”
Moreover, many seemingly-innocent students have been expelled or suspended based on meager evidence, as is evidenced by the cases cited on the web site of the Foundation for Individual Rights in Education, and in former Massachusetts ACLU leader Harvey Silverglate’s Wall Street Journal op-ed in discussing the Caleb Warner case. As I noted in the commentary below, “For examples of seemingly-innocent students expelled or suspended from school based on very weak evidence, in the aftermath of the Education Department’s “Dear Colleague” letter, see here, here, here, here, here, here, and here.”
Unfortunately, the deck is usually stacked against the accused student. School officials have every incentive to expel students if there is any chance they are guilty at all. A state university official who doesn’t kick out the accused can be individually sued under decisions like Murrell v. School District No. 1 and Fitzgerald v. Barnstable School Committee. That’s in addition to the fact that the university itself can be sued under Title IX. School officials can also be sued under state sexual harassment laws that reach further than Title IX, like New Jersey’s Law Against Discrimination, which provides for individual liability on the part of school officials, as well as liability based on constructive rather than actual notice.
By contrast, a school that expels an innocent accused probably can’t be sued, even if he is probably innocent, since the accused only has a right to PROCEDURAL due process, not any SUBSTANTIVE finding of guilt or innocence. So as long as the school goes through the motions of giving the accused a fair hearing, and follows its procedures, it can kick him out even if he is probably not guilty.
Note, however, that there is a division among courts as to whether public school officials can be sued individually under the Fourteenth Amendment for failing to remedy "peer harassment" (in addition to the school system itself, which obviously can be sued for failing to respond to peer harassment under Title IX). As I have explained earlier, individual school officials generally should not be subject to such liability, as a logical matter, given the Constitution's "state-action doctrine," which results in the Fourteenth Amendment being more limited than Title IX as to peer harassment. But courts are split on this subject, with some, like the Second Circuit, broadly allowing such suits against public school teachers and administrators over racial or sexual harassment by students, while others do not, see, e.g., Soper v. Hoben, 194 F.3d 845 (6th Cir. 1999) (in harassment cases, equal protection claim requires discriminatory purpose, while Title IX claim requires only showing of indifference to harassment); Morlock v. West Central Educ. Dist., 46 F.Supp.2d 892 (D. Minn. 1999) (same); S.S. v. Eastern Kentucky Univ., 2008 WL 2596660 (6th Cir. July 2, 2008) (disability harassment); UWM Post v. Board of Regents, 774 F.Supp. 1163 (E.D. Wis. 1991) (Equal Protection Clause requires showing that agent of college, not student, engaged in harassment).
Although private colleges are not regulated by the Constitution, the Education Department cannot force them to discipline students in ways that would violate the First Amendment or due process guarantees if they were at a state college. The government cannot force a private entity to do something that the government cannot itself do directly. See, e.g., Merritt v. Mackey, 827 F.2d 1368 (9th Cir.1987) (due process); Okwedy v. Molinari, 333 F.3d 339 (2d Cir. 2003) (free speech); Rattner v. Netburn, 930 F.2d 204 (2d Cir. 1991) (free speech); Truax v. Raich, 239 U.S. 33, 38 (1915) (equal protection).