The Education Department, where I used to work, is becoming more and more extreme in how it interprets and applies federal law. Sometimes this comes at the expense of colleges: as a task force of college presidents recently noted in a report to the U.S. Senate, the Education Department frequently makes up new legal mandates out of thin air under the bogus pretense that they are required by some statute, and then imposes them on colleges, without even going through the notice and comment required by the Administrative Procedure Act.
Sometimes, its overreaching comes at the expense of individual people. The Education Department has thumbed its nose at court rulings by creating entitlements for people who make false discrimination and harassment complaints—even though such baseless complaints can make life miserable for the victims of such false allegations (and cause serious problems for the institution they work for or attend).
Federal judges have ruled that people who lie and file sexual harassment charges over conduct they falsely claim was unwelcome can be disciplined, in cases such as Vasconcelos v. Meese (1990). But in a recent Title IX investigation of Michigan State University, the Education Department required university officials to offer “remedies” to “Student A,” whom both it and the University found had made a false allegation of sexual assault against two students.
The Education Department’s strange logic was that the university did not begin proceedings against the accused students fast enough (even though it immediately kicked them out of their dorm and ordered them to stay away from the accuser).
But the university’s brief delay in investigating was not because it was indifferent to sexual abuse. Instead, it was due to the fact that the complainant decided not to file formal college charges against the accused (the criminal justice system found her complaint so unsupported by evidence that the accused were never charged, and she declined to pursue formal charges at the college level). It is absurd to demand swift college prosecution of innocent people when the accuser herself does not demand it.
The accused students, whose lives were transformed for the worse by the charges, were innocent, under the Education Department’s own admission. The university investigator ultimately found their conduct was welcome, and thus not sexual harassment or assault. Moreover, the Education Department’s Office for Civil Rights (OCR) itself noted in pages 30-31 of its investigative report that “OCR’s review of the investigator’s report and his supporting documentation led OCR to conclude that the preponderance of the evidence did not support a finding that Student A was subjected to unwelcome sexual conduct that created a sexually hostile environment.”
Yet, the Education Department argued that the college should “remedy” the imaginary harm caused by its failure not to process her false complaint faster. On pages 40-41 of its report, it mandated that “under the terms of” its agreement with the university, the university will contact Student A and “offer” her “remedies to address any harm incurred as a result of the University’s delay in processing [her] complaints,” which might involve things like paying for counseling, providing academic assistance, or letting her retake a class she was enrolled in during that period.
This curious demand by the Education Department raised eyebrows even at left-leaning publications such as the Chronicle of Higher Education, which noted that “the department’s 42-page letter outlining its findings is an illustration of just how difficult it can be for colleges to comply with the [administration’s] beefed-up interpretation of . . . Title IX.”
As a Chronicle reporter observed, after Student A complained to police and the university hospital of being assaulted, the university took immediate action to protect her, by kicking the accused students out of her dorm the very next day, moving them “into a different dormitory,” and by “telling them to avoid social gatherings and not to contact Student A.”
Such actions against people accused of harassment or assault are known as an “interim measure,” since they are temporary measures imposed on people even before they are found guilty, and even though they later may be found innocent. Such measures can raise serious due-process issues when they last for a long time; are based on very dubious charges; or inflict serious financial or educational harm on the accused. Yet the Education Department has told some colleges to impose such measures as a matter of course whenever assault or harassment are alleged.
The university did not ignore any complaint from the accuser. Indeed, as the Chronicle noted, Student A herself did not even “file a sexual-harassment complaint with the university”:
Days after Student A reported the assault, the county prosecutor’s office announced it would not press charges against the accused students. Student A then told Michigan State she had decided not to file a sexual-harassment complaint with the university, saying she was mainly concerned about running into the men in their residence hall (they’d been reassigned by this point). She got . . . personal-protection orders forbidding the two male students to follow her or to communicate with her, among other things. University staff members met with the male students to make sure they understood what they were allowed to do.
After all that, university officials considered the matter closed.
But when the Office for Civil Rights got wind of media reports about the alleged assault, it reached out to Michigan State and “offered technical assistance.” Soon after, the university began an outside Title IX investigation to determine if the alleged assault had violated its sexual-harassment policies, even though the student had still not filed a formal complaint. . .
The outside investigator finished work at the end of 2010, and determined that there was not enough evidence to suggest the university’s harassment policy had been violated. The Office for Civil Rights agreed, saying in Tuesday’s letter that the investigation was “thorough and adequate” and that evidence did not support the claim that Student A had been subjected to unwelcome sexual conduct.
Since Student A’s complaint was untrue, and the college immediately shielded her from exposure to the accused (protecting her from any potential retaliation), it is hard to fathom what possible harm the Education Department thinks she could she have experienced from the university not investigating her charges faster. Presumably, she would not have benefited from the university deciding even sooner that she was not telling the truth. Indeed, its discovery that her charges were unfounded may have undermined any basis she might otherwise have had for extending the no-contact orders she obtained against the men falsely accused, and for excluding them from shared areas on campus. Indeed, this might have been the very reason she didn’t ask for, and apparently didn’t even want, the formal investigation that the Education Department wanted the college to bring even faster.
In short, contrary to what Education Department suggested in its investigative report, there is no reason to think there was any harm to Student A from the university’s “delay” in formally “processing” her accusation. And there is logically no way to “remedy” a non-existent harm. Yet, its investigative report requires MSU to contact Student A to offer her “remedies” for that “delay.”
Troublingly, this is not the first time that the Education Department required remedies for a student who apparently made a false accusation. In a 2014 letter announcing the results of its investigation of Tufts University, it complained that the university allowed in certain evidence of an accused student’s innocence, leading to Tufts finding him not guilty of sexual assault, rather than excluding it as untimely or inadmissible. For example, it criticized Tufts for “allowing the Accused to submit an Addendum” responding to the charges after the deadline, and letting him show the complainant lied about her medical history, which he obtained by pretending to be a medical student. To resolve the investigation, Tufts had to pay the complainant “monetary compensation,” even though the agency never stated that she was sexually assaulted, and even though it lacked the legal authority to award monetary damages.
The Education Department also found Tufts in violation of Title IX because it took over a month before “requiring the Accused to move out of the residence hall,” and left her to attending a class “together with the Accused” rather than barring him from that class, which “thus exposed” her “to close physical proximity to the Accused.” But if the accused was not guilty of sexual assault, then he was not dangerous, and the complainant had no right to demand that he be excluded from his classes and dorm.
The Education Department’s demands are impossible to square with well-established case law. No court has ever found an institution in violation of Title IX, or any federal law against sexual harassment, for failure to remove an accused person from proximity to the complainant when the accused was not actually guilty of sexual harassment. Indeed, courts often rule for institutions sued for harassment even when the accused individual was guilty, and the institution either never removed the accused from proximity to the complainant (even after disciplining him) or only removed him after he was found guilty.
The Education Department’s position is illogical, and puts institutions in a difficult bind. Forcing an institution to tolerate false charges could theoretically subject it to a risk of liability in a lawsuit brought by the defamed individuals: Courts have recognized that sexual slander and smears can sometimes create a sexually hostile environment in violation of federal law in cases such as Jew v. University of Iowa (1990) and Spain v. Gallegos (1994), at least where the slander is based on sexual animus.
The Education Department has discouraged colleges from allowing cross-examination by the accused, even though the Supreme Court described cross-examination as the “greatest legal engine ever invented for the discovery of truth” in Lilly v. Virginia (1999), and even though a few court rulings have required colleges to allow cross-examination, such as Donohue v. Baker (1997).
Education Department officials have also sought to gut the presumption of innocence. The Yale Law Journal noted in 1987 that “courts, universities, and student defendants all seem to agree that the appropriate standard of proof in student disciplinary cases is one of ‘clear and convincing’ evidence.” But in an April 4, 2011 “Dear Colleague” letter, the Education Department ordered colleges not to use that longstanding standard.
In a fashion reminiscent of double jeopardy, the Education Department has also forced colleges like Southern Methodist University to review all past complaints they dismissed in prior years (even when those dismissals were not challenged by any complainant), and resolve them to the agency’s liking—potentially resulting in expulsion of a student previously found not guilty.
Its Office for Civil Rights has also sought to redefine constitutionally-protected speech as verbal “sexual harassment.” For example, it has told schools to regulate off-campus conduct (apparently including speech on the “internet“), which are beyond Title IX’s reach under decisions like Roe v. St. Louis University (2014); and it pressured Tufts University to regulate academic speech not even “directed at” the complainant (creating serious First Amendment problems under the 2010 Rodriguez decision).