WASHINGTON, Feb. 13, 2012 — The Association of Title IX Administrators has co-authored the following statement:
On April 4th, 2011, the US Department of Education's Office for Civil Rights (OCR) issued a "Dear Colleague Letter," (DCL) which explained schools' responsibilities for addressing campus sexual violence under Title IX.
The DCL signals the OCR's strong commitment to increased enforcement of Title IX as a prohibition against discrimination based on sex, including sexual harassment and sexual assault and addresses needed improvements in the promptness of administrative responses and resolutions of complaints, and enhanced equity in policies, investigations and procedures. The DCL also notes in particular that complaints against athletes must be subjected to the same rigorous standard as when the accused individual is a non-athlete.
This statement is intended as a declaration of support for the DCL as a whole. The two main provisions of the DCL that have generated the most debate are:
1. A provision recognizing that schools must apply a preponderance of evidence standard of proof when assessing the merits of a complaint of sex-based discrimination, harassment and/or violence;
2. A provision requiring equitable treatment of victims and accused students.
THE PREPONDERANCE STANDARD
Proof by a "preponderance of the evidence" means the evidence is sufficient to persuade the finder of fact that the proposition is "more likely true than not." Contrary to a few highly publicized claims, the DCL's requirement of a preponderance of evidence standard is neither new nor controversial. Indeed, according to Russlynn Ali, Assistant Secretary for Civil Rights at the Department of Education, approximately 80% of colleges and universities were already using the standard prior to the issuance of the DCL.
The preponderance standard is the only equitable choice under Title IX as it avoids the presumption, inherent in a higher standard of proof, that the word of a victim is less weighty than the word of an accused individual's denial. It also enables school officials to render more decisive findings, given that a determination that one individual is more credible than another will support a finding. This is important given widespread criticism of school policies that enable decision-makers to claim they "believed" the victim, thus offered her counseling services, etc., but did not believe her enough to justify a finding against the assailant.
THE EQUITABLE TREATMENT OF VICTIMS AND ACCUSED STUDENTS
Fair treatment of victims and accused students is consistent with the explicit mandate that schools adopt policies providing for "equitable" redress. The DCL is clear that the rights, benefits, privileges or opportunities typically extended to accused individuals should also be extended to victims. For example, if an accused individual is provided with a right to an advocate, the same benefit should be made available to the victim. Title IX obligates the school, not the victim, to take all responsibility for the remediation of harm by providing for the prompt, equitable and effective redress of complaints.
In certain circumstances, schools are even obligated to take action prior to affording an accused individual notice and an opportunity to be heard, as when a "student's presence endangers persons or … threatens disruption of the academic process …."
Equity does not mean applying exactly the same rules to victims as accused students. For example, it is inappropriate for schools automatically to issue mutual "no-contact" orders between victims and offenders as this restrains a victim's freedom of movement and access to campus facilities without justification. Likewise, a victim should not be made to adjust her living conditions and/or be ordered to stay away from the offender. The DCL makes clear that imposing any such burdens on a victim is inequitable and may constitute new harm under Title IX.
Finally, equity requires schools to consider allegations that an accused offender has committed multiple similar offenses. The special nature of a school community renders "pattern evidence" especially relevant because schools can be held liable to victims if they are "deliberately indifferent" to known risks of harm on campus. This is an especially important factor in sexual assault cases because 90% of those who commit campus assaults are repeat offenders.
Read this letter in full at http://atixa.wordpress.com/
Direct media and other inquiries to ATIXA Executive Director Brett A. Sokolow, Esq. at 610.993.0229 or Email
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