Standing Up for Title IX in Federal Court
Equal Rights Advocates, joined by a dozen women’s rights and survivor advocacy organizations around the country, filed an amicus brief last week in Neal v. Colorado State University-Pueblo, one of three cases challenging the validity of the U.S. Department of Education Office for Civil Rights’ (OCR) April 4, 2011 Dear Colleague Letter, which addresses colleges’ responsibilities under Title IX with respect to campus sexual assault. OCR issues Dear Colleague Letters to advise the public of its interpretation of the civil rights laws it enforces, which include Title IX and other laws prohibiting discrimination in all schools that receive federal funding.
In the CSU-Pueblo case, plaintiff Grant Neal was suspended from college after being found responsible for sexual assaulting a female student. He is suing several defendants, including the university, on the grounds that his suspension was unfair, and the U.S. government, on the grounds that the 2011 Dear Colleague Letter is invalid. Neal’s challenge to the validity of the Dear Colleague Letter is essentially a procedural one: he claims that OCR should have gone through a process known as notice and comment rulemaking, in which an administrative agency invites public comment on a proposed rule, before sending out the letter. But Neal doesn’t stop at seeking procedural relief: he wants to change the rules themselves. Specifically, he seeks to require colleges to use a much higher standard of proof in cases involving allegations of sexual violence — “beyond a reasonable doubt” or “clear and convincing evidence” — than the “preponderance of the evidence” standard called for in the Dear Colleague Letter. If he prevails, Neal’s lawsuit would eviscerate important Title IX protections for students that the 2011 Dear Colleague Letter sought to explain.
The Dear Colleague Letter is a tremendously important tool for the enforcement of Title IX, and worth defending. Title IX’s implementing regulations have required colleges to “adopt and publish a prompt and equitable grievance procedure for the resolution of student and employee complaints” of sex discrimination since 1976. Yet colleges have failed to live up to their responsibilities – instead, we have frequently seen survivors re-traumatized in disciplinary proceedings, and institutions failing to impose appropriate sanctions for serious crimes. Our amicus brief explains why it is within OCR’s authority to issue guidance to schools explaining what it takes for a disciplinary proceeding to be “equitable,” and how the Dear Colleague Letter does exactly that. (Read our brief here.)
Our brief also explains why a “preponderance of the evidence” standard is necessary in these disciplinary proceedings. Neal argues that a heightened standard of proof should apply in college adjudications of sexual assault allegations because “school disciplinary proceedings concerning allegations of sexual misconduct may result in consequences as severe as those arising from criminal charges.” This just isn’t true. Criminal trials use a “beyond a reasonable doubt” standard because of the liberty interest at stake—a conviction can result in incarceration, or even death. Colleges do not have the authority to impose those kinds of consequences on students. College disciplinary proceedings are also unlike other legal proceedings in which the Supreme Court has found that the higher standard of proof should apply, such as proceedings to strip people of citizenship, deport them, civilly commit them, or terminate their parental rights. Furthermore, imposing a higher burden of proof would give accused students an unfair advantage, and deter survivors of campus sexual assault from reporting or pursuing any relief.
Equal Rights Advocates is grateful to all of the organizations who signed on to this brief and provided input and support. We are committed to continuing to oppose attempts to undermine the enforcement of Title IX.
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