American colleges and universities are under unprecedented pressure to address cases of sexual assault on campus. Student activists and assault survivors have lobbied to hold schools accountable from within. While the Obama administration is using Title IX, a law more commonly associated with collegiate sports, to compel schools to change the way they handle cases. But some administrators and law professors worry that new campus policies could have unintended consequences. Kojo examines evolving approaches to combat sexual crimes on campus.

Guests

  • Dana Bolger Co-Founder, KnowYourIX
  • Megan C. Farrell Title IX compliance consultant; Associate Professor, Notre Dame of Maryland University
  • Catherine Lhamon Assistant Secretary for Civil Rights, U.S. Department of Education
  • Sara Lipka Senior Editor, Chronicle of Higher Education
  • Janet Halley Royall Professor of Law, Harvard Law School

Transcript

  • 13:06:38

    MR. KOJO NNAMDIFrom WAMU 88.5 at American University in Washington, welcome to "The Kojo Nnamdi Show," connecting your neighborhood with the world. This spring, Title IX became a very public tool for fighting sexual assault on college campuses. For four decades the Civil Rights Law has been best known as a tool to ensure women equal access to organized sports. But Title IX also guarantees the right to attend school without fear of sexual violence or harassment. This May, the Department of Education released the first public list of colleges under investigation for violating that right, a tally that now stands at more than 80 schools.

  • 13:07:23

    MR. KOJO NNAMDIThe Obama administration has not been shy about using its power and threatening to withhold funds from schools without adequate sexual misconduct policies. Later in the hour, we'll find out how some elite universities have changed the procedures for handling accusations of misconduct and even changed the standard for what constitutes consent. But, we begin with Catherine Lhamon, who heads the office of civil rights at the U.S. Department of Education. Catherine Lhamon, welcome back to the show.

  • 13:07:53

    MS. CATHERINE LHAMONThanks so much. It's great to be here.

  • 13:07:54

    NNAMDIWe're also joined by Sara Lipka, a senior editor with the Chronicle of Higher Education, which has been covering this issue closely. Sara Lipka, thank you for joining us.

  • 13:08:02

    MS. SARA LIPKAThank you, Kojo.

  • 13:08:04

    NNAMDIAnd we begin the conversation with you. Those of you who chose to call, 800-433-8850. You can send email to kojo@wamu.org. How should colleges and universities address sexual assaults on campus? Do you see sexual assault and harassment as a civil rights issue? Give us a call. Share your opinion or ask a question at 800-433-8850. Catherine Lhamon, Title IX is one of the best known civil rights laws in American education. It's long been employed as a tool to prohibit discrimination and ensure equal access for women's sports at academic institutions. But the law also covers sexual assault. How so?

  • 13:08:45

    LHAMONWell, Title IX guarantees equal access on the basis of sex to educational opportunities, so it covers any of the range of ways that sex discrimination could occur in schools. And we have been using it to great effect to protect against sexual violence for its full four decades. The newest component for us at the Department of Education was that in 2011 we issued guidance that specifically called out sexual violence as a civil rights issue, which was the first time any administration had ever done that. And I think it was a hugely important next step in the effort to really change lives of students in schools, so that we don't see sexual violence as the prevalent scourge that it has been for too long.

  • 13:09:27

    NNAMDIAnd there's an important distinction to be made here that -- is that rape or harassment is also a crime. It can be prosecuted in courts. But it can be also a violation of a woman (sic) or a man's civil rights.

  • 13:09:40

    LHAMONThat's exactly right. That's exactly right.

  • 13:09:42

    NNAMDISara, this April, a White House task force released a report on sexual assault titled, "Not Alone." It estimated that one in five women is sexually assaulted in college. This is not a new problem. For years, we have all heard horror stories about women being victimized by callous administrators about schools refusing to suspend or expel perpetrators and about women being punished for coming forward. So why is there new momentum on this issue right now?

  • 13:10:09

    LIPKAWell, I think the Obama administration, like Catherine was just saying, has been focused on this issue from the beginning, signaling that they were going to take a hard line against discrimination and really step up enforcement. And at the same time, students have been mobilizing. Many students have come forward, sometimes with really harrowing stories that they share publicly. They've connected with one another on social media and really organized a movement that last year protested in front of the Education Department saying, our schools have treated us unfairly and you need to enforce the law so that they're getting it right.

  • 13:10:44

    NNAMDIWe'll be talking with one of those activists shortly in this broadcast. But Catherine Lhamon, when we last spoke to you in May, there were 55 schools on this list. This week, we learned that the list stood at 85 schools. What should be make of this increase?

  • 13:10:59

    LHAMONFirst, we should be concerned about the volume of sexual violence and sexual harassment concern around the country. And also we should be flabbergasted, as I am, by the tremendous increase in the volume of complaints that are coming in to us. I don't think that the take-home for us is that is more sexual violence taking place than had been during the past. I think there are more people coming forward talking about it and expecting to have their rights protected. And that's good news, really, that more people are talking about it, that the issue is coming out of the shadows. My own view is that people have come to trust us as an agency because we have said, we will be there for you. We are here to protect your rights.

  • 13:11:38

    LHAMONAnd that is our job. We should be doing that. I'm so pleased that people are coming to us. And I hope and expect that we can earn that trust through effective, robust enforcement that is both identifying violations where they exist and celebrating non-violations where they don't exist.

  • 13:11:54

    NNAMDIWe're interested in hearing your comments or questions. You can call us at 800-433-8850. What role do you think the federal government should be playing in this debate? 800-433-8850. You can send email to kojo@wamu.org. We're talking with Catherine Lhamon. She is assistant secretary for civil rights at the U.S. Department of Education. And Sara Lipka, senior editor of the Chronicle for Higher Education. Sara, when an alleged sexual assault is committed on a campus and a complainant comes forth, there are two interrelated but different processes that can be set forth -- a university administrative procedure to suspend or expel an alleged attacker and a criminal investigation.

  • 13:12:36

    NNAMDIIn many cases, you will see one but you won't see the other. How does that complicate the issue?

  • 13:12:42

    LIPKAWell, when a student reports an assault on campus and decides to proceed with a disciplinary case, usually there's some form of investigation on the part of the college. An investigator, who is often a college employee, will interview the parties and any witnesses who may have been with them shortly before or shortly after the incident. The investigator might look at pictures -- people's cellphone pictures, text messages, even try to retrace the steps that the students had, say, that night in question. At the same time, a student who reports an assault can go to the police. And there has been some message recently that those students should be encouraged to pursue any options that might be comfortable to them.

  • 13:13:22

    LIPKAI have heard from students who are active on this issue that they often feel daunted by the criminal justice system, that it's a very public process, that they're concerned that it will re-traumatize them, that they've heard that prosecutors who face political pressure to win cases often don't pursue charges of sexual assault. And so they imagine that they'll find more justice or that they will have a more sensitive process on campus than they would in the criminal justice system. Although they should know that they can pursue whatever means is comfortable to them.

  • 13:13:54

    NNAMDICatherine Lhamon, could that be one of the issues that your department has decided to pursue this more aggressively, because of a certain intimidation, fear of going into the criminal justice system?

  • 13:14:07

    LHAMONYou know, it's really not. I do have real concern about the criminal justice system as well. And I absolutely support Sara's view that students should be able to use any process that is comfortable for them. The reason that we are more aggressive is that there is greater need for us to enforce the civil rights in general. We are more aggressive about civil rights enforcement across the board. This is one of the areas. Our view is that a civil rights violation anywhere is a civil rights violation that we need to address, period. The need for students to be able to be safe, comfortable, effective in their learning environment on campus, is categorical and is protected by Title IX. And we need to be there in an aggressive way to ensure that that's true.

  • 13:14:45

    NNAMDIIt's often very difficult to prove that a sexual assault took place. Sometimes there are -- there is substance abuse involved. Sometimes it's an accuser's word against the word of the accused. Some colleges and universities are beginning to change the standard for determining the guilt of someone accused of assault from reasonable doubt to preponderance of evidence. Sara, why is that important?

  • 13:15:08

    LIPKAWell, a few years ago, colleges each considered how to decide cases and which standard of proof to use. Some said that the evidence had to be clear and convincing. Some used the lower standard of evidence of more likely than not, also called preponderance of the evidence, or some people describe as 51 percent likelihood that an assault occurred. But the Education Department started saying in 2011 that the standard they should use is preponderance of the evidence, that it was more likely than not that an assault occurred. And that standard of proof is important because, even though this isn't a criminal proceeding and no one is going to be put in jail, a lot rides on whether the college gets it right.

  • 13:15:48

    LIPKASo if they get it wrong, then a victim could be traumatized by seeing her assailant out on campus, in the dorms, in the dining hall. And that person might go on to assault other students. If the college gets it wrong the other way, then an innocent student gets expelled, maybe struggles to get into another college, in some cases loses a student visa. So a lot rides on that standard of proof. And colleges had previously been considering what they thought was right. And now the Education Department has pointed them in the direction of more likely than not.

  • 13:16:19

    NNAMDIPointed them in the direction. Catherine Lhamon, it has been reported that your office is more than pointing in the direction, but pressuring schools to adopt this less-stringent standard for assessing guilt of students accused. It's one of the reasons why 28 current and former professors of Harvard University have objected to the changing of that standard. Is it true? Are you pressuring universities? And if so, why is it important?

  • 13:16:44

    LHAMONWell, it's certainly important and we don't view what we do as pressuring. What we are doing...

  • 13:16:47

    NNAMDIEncouraging.

  • 13:16:49

    LHAMONWe're certainly encouraging. And we're trying to be very clear about what the law is and the ways that schools can make sure that they satisfy the law. What we learned, when we were developing the guidance in 2011, was that about 80 percent of colleges and universities already used the preponderance of the evidence standard, which is the appropriate standard. It's also the standard that the courts have laid out for civil rights investigations. So it's really not an open question. It should not have been a new issue. And it is enormously dismaying to me when I hear from schools that they think that they should be using a different standard because this is the way that civil rights issues ought to be investigated.

  • 13:17:22

    LHAMONIt is the appropriate way to balance the rights of both the accused and the claimant in any investigation. So it's really an effective tool for making sure that there's a process that is fair for all parties. You mentioned the concern from a set of Harvard professors. I do want to be clear, we have an open investigation at Harvard Law School and also at Harvard University related to sexual violence, but -- so I can't comment on the investigation and it's status. But I can say that Harvard was very, very open about having changed its policy independent of our review. We have not yet completed our investigation and we have not yet signed off on the policy.

  • 13:17:58

    LHAMONSo as I see it, the set of concerns that the Harvard professors are raising is a concern with Harvard, because Harvard changed that policy on its own. And that they should take that up with Harvard and also take a look at what we've said, in 2011 and more recently last April, about what elements should be present in any policy on campus. And I expect and hope that they will be pleased and find it totally consistent with the constitutional (word?)

  • 13:18:21

    NNAMDILater in the broadcast, we'll be talking with one of the Harvard law professors who signed that objection. But right now, we're talking with our guests and with you -- those of you who call us at 800-433-8850. You can send email to kojo@wamu.org. What role do you think the federal government should be playing in this debate? How should colleges and universities address sexual assaults on campus? 800-433-8850. I know that you cannot talk about schools or cases that are currently under investigation but something happened that has been in the headlines here recently. And I won't ask you to comment on that specifically, but I will refer to it.

  • 13:19:00

    NNAMDIThe disappearance of University of Virginia student, Hannah Graham. In the time since she disappeared on September 13, attention has focused on a suspect who was apparently accused of sexual misconduct at two separate Commonwealth universities over the years, before he settled in Charlottesville. In a recent piece in the Roanoke Times, Bob Gibson, a faculty member at the University of Virginia -- and, I should mention, a frequent guest on this broadcast -- wrote a piece asking whether it is time for universities to share information about students who are accused of crimes, to ensure that administrators are aware of past dangerous behavior of their students.

  • 13:19:39

    NNAMDIWhat is your take on that, in general? Do you think that schools should be communicating with each other about that kind of information?

  • 13:19:47

    LHAMONAbsolutely. I think it's very important for us to be sharing information about safety issues and certainly to be taking this issue of sexual violence out of the shadows. What we know is that secrecy does not help safety, that secrecy does not help make sure that our students are safe. And it's deeply concerning to read, as I have, about the news reports about that they -- person of interest's prior college history at two different colleges and the lack of information that we have about them.

  • 13:20:14

    LHAMONI think that where a student is being expelled for a safety violation, the next school that the student should go to should have that information to be able to decide whether that student would be a full and appropriate member of that school community as well.

  • 13:20:28

    NNAMDIIf there was not suspension and if there was an allegation that was somehow unproven, should that information also be passed on? Because people will say, how about the rights of the accused in that situation?

  • 13:20:38

    LHAMONThat's right. And there are serious privacy concerns. And so, you know, where something doesn't rise to a level where the university has reached a conclusion and made a determination about what it's doing, that's a separate independent question. But as I've read about this particular individual, there were conclusions reached at two universities that then didn't get shared and were not made public, and today have not been made public. And, you know, that's a deep concern for the communities that will be around that person in the person's next schooling opportunities.

  • 13:21:06

    NNAMDICatherine Lhamon is assistance secretary for civil rights at the U.S. Department of Education. Sara Lipka is a senior editor with the Chronicle of Higher Education. Joining us now by phone is Dana Bolger, co-founder of KnowYourIX, an organization dedicated to empowering students to stop sexual violence on campus. Dana Bolger, thank you for joining us.

  • 13:21:27

    MS. DANA BOLGERThanks so much for having me.

  • 13:21:28

    NNAMDITell us a little more about KnowYourIX.

  • 13:21:31

    BOLGERSure. KnowYourIX is a national grassroots survivor-led student campaign to end campus gender-based violence. The campaign was founded a little over a year ago by a number of survivors, myself included, who had been, first of all, raped on campus and then mistreated by administrators when we attempted to report it. The result of not knowing that Title IX protected us as survivors of sexual assault, we weren't able to stand up to our schools when we were being mistreated and defend our rights. And so KnowYourIX really aims to educate students about the rights so they will have the power to stand up for themselves.

  • 13:22:08

    NNAMDIAnd Dana was one of the students who participated in those protests outside the Education Department that Sara Lipka referred to earlier. Dana, you're equipped on -- you're focused on equipping students with the information they need to be able to advocate for themselves if they find themselves in these circumstances, right?

  • 13:22:24

    BOLGERYes.

  • 13:22:25

    NNAMDIHow, in your view, has campus activism, Dana, contributed to these debates?

  • 13:22:31

    BOLGEROh, I think it's been hugely transformative. You know, first of all we've had literally dozens and dozens of survivors coming forward publically with their stories, talking to journalists and sharing the most private, traumatic experiences of their lives in order to both highlight abuses at their schools and show common theme across the country. Survivors have been working with students all across the country to educate each other about our rights.

  • 13:23:01

    BOLGERWe took the fight to the Department of Education to urge the department to take more steps to hold schools accountable for their violations. And we've been very pleased to see that the department did end up releasing a list of schools under investigation for violations. That had been one of our significant asks because we think it's so important that students, and particularly perspective students and their families know school track records on sexual violence when they're applying.

  • 13:23:28

    NNAMDIDana, we've been talking about this push to use Title IX for sexual assault as if it's new but it's always been on the books, at least since 1972. Your group, as we mentioned earlier, staged protests in front of the Department of Education trying to get it to enforce this power. Is it safe to say that you are in favor of this new focus from the Office of Civil Rights?

  • 13:23:49

    BOLGERAbsolutely. And I just want to echo the assistance secretary that I don't think that the focus is new. What was new and what was hugely important for survivors and students was the 2011 Dear Colleague Letter. The Dear Colleague Letter clarified in more detail than ever before what schools' obligations are under Title IX as well as what students' rights are. And with that Dear Colleague Letter, survivors like myself were able to walk into meetings with our school administrators and point in that letter to places where they were in clear violation. And in so doing were able to demand justice for ourselves and for other students.

  • 13:24:28

    NNAMDIHere is Lauren in Washington, D.C. Lauren, you're on the air. Go ahead, please.

  • 13:24:34

    LAURENHi, thanks for taking my call. I'd like to ask, I'm familiar with the White House taskforce that Vice-President Biden headed up on protection of students on campus. I'm not quite sure what the relationship between that taskforce and the Education Department is. But I teach in D.C. personal safety to women and girls and other people targeted for abuse, harassment and assault.

  • 13:25:06

    LAURENAnd I appreciate all the focus on women and others who are targeted having a better experience after they've been assaulted but I don't understand why the taskforce didn't come up with more things focused on prevention.

  • 13:25:22

    NNAMDIAnd I don't know if the assistance secretary can respond on behalf of the taskforce but is there also, in your department, some emphasis on prevention?

  • 13:25:30

    LHAMONThanks so much. And I can't actually respond on behalf of the taskforce as well. It's the White House taskforce to protect students from sexual assault. There's secretary level participation from several of the cabinet departments and the Department of Education is one. I am one of our representatives to the taskforce. And we've been actively involved both in the first 90 days when we released the -- our first report. And we continue because we have an annual report to the president about what more we can do.

  • 13:25:57

    LHAMONWe wanted to do as much as we could, both in the prevention space as well as in the enforcement space. It's obviously better to prevent the instance of sexual violence before we have any need for enforcement thereafter. And we collected a set of resources about what research is available that talks about best practices for prevention, a set of resources about training programs that work and for which age groups.

  • 13:26:19

    LHAMONAnd one of the dismaying realities that we learned through our first 90 days in the taskforce is that there's very little research-supported prevention work that is already existent, but we called on best practices including bystander intervention. We called on universities to do some research about what else could be delivered. And we're very excited that several colleges and universities took up that charge and are in the middle of doing that research.

  • 13:26:41

    LHAMONAnd the White House just released an It's-On-Us campaign that is a new campaign that is about bystander prevention (sic) that the main goal of which is to say each of us has a role to play in preventing sexual violence and standing in and stepping up for someone who needs help when we see uncomfortable situations that are beginning, and helping somebody get home safely and get out of a situation that's not safe for that person.

  • 13:27:03

    NNAMDISara, unfortunately some allegations of sexual assault often fall in a gray area. Some of the trickiest cases involve acts that were consensual at the beginning. Then one person wanted to stop, the other person wouldn't do it. I bring this up because some schools are trying to redefine consent to make it much more explicit and continual. What is affirmative consent?

  • 13:27:23

    LIPKASo there's a momentum right now toward affirmative consent which people describe as yes means yes. It's seen as a more progressive standard with the previously existing standard or one that some places still use, no means no. The student who comes forward and reports an assault has to prove the use of force or has to prove some resistance. But with yes means yes the accused student has to prove getting that consent. Under some policies it's a verbal consent. Under some policies it's consent through actions.

  • 13:27:59

    LIPKASo affirmative consent is now just recently the law on campuses in California. And other states are considering similar laws. Many campuses have adopted it and students elsewhere are pushing for it. And there's the sense that it better protects victims, that it clarifies expectations for students about sexual respect in terms of the prevention you were talking about. Colleges that have an affirmative consent policy can do training around that. There's even consent porn that has just come out recently, short films that promote the idea of seeking consent in sexual encounters.

  • 13:28:35

    NNAMDIMadam Assistant Secretary, does your office, the Office of Civil Rights have a policy on affirmative consent?

  • 13:28:41

    LHAMONWe do not partly because Title IX doesn't require consent as an element for our enforcement work. But we do include a set of elements for ways that schools can identify at least in minimum terms they would have in their own definition of consent. And obviously consent, it can be an important element of an inquiry about whether sexual violence had occurred.

  • 13:29:02

    NNAMDIAs I mentioned earlier, later in the broadcast we'll be talking with a professor at Harvard Law School who recently joined that open letter criticizing Harvard University for its new policy. In the letter it makes oblique reference to someone who might be sitting in this studio. But you have pointed out that it was not the initiative of your office to have Harvard do this at all. I know you can't comment on any school that is currently under investigation, but I'm curious about how you respond to concerns that your office is overstepping its bounds.

  • 13:29:30

    LHAMONI think our office is squarely within its bounds. It is our charge to ensure the satisfaction of civil rights for every student in P through 12 and also college and university around the country. And that's a big charge. And it's very, very important to me that we fully deliver on that charge. Every student should have his and her civil rights protected. And we are not overstepping our bounds. We are living up to the obligation that congress has set for us.

  • 13:29:53

    LHAMONI do also want to just clarify for Harvard, we have asked Harvard to take a look at its policies and make sure that they're fully compliant with Title IX. We haven't talked about the specifics that are in the policies that Harvard has put out. We look forward to being able to do that when we conclude our investigation.

  • 13:30:05

    NNAMDICatherine Lhamon is assistant secretary for civil rights with the U.S. Department of Education. Thank you for joining us.

  • 13:30:11

    LHAMONThanks very much for having me.

  • 13:30:12

    NNAMDIDana Bolger's co-founder of KnowYourIX, an organization dedicated to empowering students to stop sexual violence on campus. Dana, thank you for joining us.

  • 13:30:21

    BOLGERThanks so much for having me.

  • 13:30:22

    NNAMDIWe're going to be taking a short break during which we will be reminding you that this is our fall membership campaign. But we will be returning to this conversation and encouraging you to join it by calling 800-433-8850. Do you think there is or was a culture of impunity on campuses around the country? What should be done about it, 800-433-8850? You can also send us email to kojo@wamu.org. I'm Kojo Nnamdi.

  • 13:36:10

    NNAMDIWe're talking about addressing sexual assaults on campus, inviting your calls at 800-433-8850. You can send email to kojo@wamu.org. Joining me in studio is Sara Lipka, senior editor with the Chronicle of Higher Education. And joining us now by phone is Janet Halley, professor of law at Harvard Law School. Professor Halley was one of the 28 members of the Harvard Law faculty who penned an open letter published in the Boston Globe criticizing the university's new sexual harassment and assault policies. Janet Halley, thank you for joining us.

  • 13:36:43

    MS. JANET HALLEYThank you for having me.

  • 13:36:44

    NNAMDIAlso joining us is Megan C. Farrell. She's a consultant who works with colleges and university administrations on Title IX compliance issues. She's also a professor at Notre Dame of Maryland University. Megan Farrell, thank you for joining us.

  • 13:36:58

    MS. MEGAN C. FARRELLThank you, Kojo.

  • 13:37:00

    NNAMDIWe're examining how pressure from the federal government and from campus activists is changing debates about sexual assaults on campus. This July, Harvard University unveiled a new university-wide policy to prevent sexual harassment and violence on campus. That new policy changes the definition of sexual harassment, sets new procedures for disciplining students. Harvard is one of the schools on the list of 89 colleges under review by the Department of Education. And as we mentioned earlier this month, 28 members of the faculty of the law school published an open letter criticizing the new policies, and by extension, the role of the federal government.

  • 13:37:39

    NNAMDIJanet, the -- this was a pretty strongly-worded public letter from Harvard Law professors direct to the university. You say the new policy is inconsistent with many of the basic principles you teach. And it's signed by professors from across the political spectrum. What do the new rules do and why do you oppose them?

  • 13:37:59

    HALLEYWell, first I want to go right on record from the start saying that we are all opposed to sexual harassment and we were all in favor of our institution, both the law school and the university, taking very serious attention and taking these cases through the process fairly. And dealing with sexual harassment in a forthright and careful way, we must do it right.

  • 13:38:28

    HALLEYWe're just saying that there are right ways and wrong ways to do it, not that it shouldn't be done. We are worried about the over breadth of the definition of sexual harassment in the Harvard policy. We are worried about the due process structure of the procedures for student discipline which involve a single office which is uniquely dedicated to Title IX enforcement and whose charge appears to be limited to enforcement on sexual harassment, not the full range of discrimination matters, at least so far.

  • 13:39:09

    HALLEYAnd that office is both the charging agent in some cases, runs the investigation through its employees that adjudicates cases through its employees and is the appeals body for respondents held responsible. So this is a basic due process issue. It's both a dedicated office that doesn't have neutrality at its structural root. And then it does everything and reviews itself. And other schools haven't done that.

  • 13:39:44

    HALLEYWe also see in the policy a lot of unequal treatment of the respondent with privileges given to the complainant that the respondent doesn't enjoy. This takes us from the bad old days when the respondent enjoyed privileges that the complainant didn't enjoy.

  • 13:40:03

    HALLEYThis takes us from the bad old days, when the respondent enjoyed privileges that the complainant didn't enjoy, through very quickly, immediately, rapid one-way trip through the phase where they're treated equally to a new due process problematic world in which the complainant has privileges and the respondent is at a disadvantage again and again throughout the process. So there's -- there are a whole range of issues involved in our complaint to the university.

  • 13:40:32

    NNAMDISara Lipka, we talked a little bit earlier about the shift from a standard of reasonable doubt to a standard of preponderance of evidence. What that basically means, you explained earlier -- I'd like you to reiterate -- is that a student could be judged guilty of misconduct if that student is judged likely to be guilty, but not clearly guilty. Right?

  • 13:40:52

    LIPKARight. As we were talking about before, colleges in the past had each considered how to decide cases and which standard of proof to use. And now the education department is encouraging this standard of more likely than not.

  • 13:41:06

    LIPKAAnd as that has been emphasized, people who want to take a strong stand against sexual assault and want to make sure that victims of sexual assault are treated fairly and people who are concerned that in the past those victims were brushed off or neglected, now worry that with this lower standard of proof there might be some erosion of these due process rights for accused students, some of whom have come forward and sued their institutions and said, "The scales were tipped against us from the beginning.

  • 13:41:40

    LIPKA"And you were just always going to find us responsible." I just want to note, too, that they use that term, responsible, and not guilty because they are still in a campus process and not in the criminal system.

  • 13:41:48

    NNAMDIAnd, Janet, what do you feel about this standard of preponderance of evidence?

  • 13:41:52

    HALLEYWell, it's just one of the many procedural tools that exist across the whole range of the -- an investigation, adjudication and appeals process. I myself am not so concerned about preponderance. If you have the right people making the decision and you've structured the process well, you'll make more mistakes in the direction of enforcement against innocent people, but you'll have other brakes against that built into the system.

  • 13:42:24

    HALLEYThe problem with the new Harvard policy is that those brakes are gone. So the preponderance is just one kind of quirk in the river of trends that are going in the direction of making mistakes and the direction -- in holding people responsible who should not be held responsible. And that goes from the definition all the way through the structure of the process, all the way to the conclusion of responsibility.

  • 13:42:54

    NNAMDIMegan, you have worked within university administrations, helping them comply with Title IX requirements. Today, you're consulting with a handful of schools around the country that are contemplating changes to their procedures and to their definitions of consent. Can you give us a sense of how administrators are viewing the shifting landscape?

  • 13:43:13

    FARRELLWell, Kojo, to begin with, I think that sometimes we get a little caught up in the language. And the way that we try and help schools is to say, let's not make this into a criminal prosecution. What we find at the end of an investigation is simply whether you violated our policy or you didn't violate our policy. The policy includes definitions that are very criminal. The idea that it's preponderance of the evidence is certainly something that makes it easier from the investigator standpoint, but it leads people to believe that you actually have gone through a criminal process when you say things like, "You've been found guilty."

  • 13:43:56

    FARRELLThey've really just been found to violate the policy. So that's a challenge. I deal with schools throughout the country. And the idea of consent and this idea of informative consent is making the challenge with regard to these investigations very, very high. There's a lot of problems trying to figure out whether, yes, throughout the process was communicated verbally and that California law says that it can be communicated verbally or through actions. So there's a lot of detail. We require investigators to really put on a thinking hat and say exactly what happened here in a closed-door room, where we only have two witnesses who have two very different stories.

  • 13:44:36

    FARRELLIt leads to a very big challenge. And some of the requirements that the OCR has in place with regard to training, with regard to Title IX administration, are very onerous for campuses. A few of the schools that I have worked with -- one was a very non-traditional university -- did not have a student presence on campus. They were all online students. Another university I worked with was a women's college. Both of these universities had very little challenges with regard to Title IX, very little history and going forward, very little claims that would fit under this definition.

  • 13:45:14

    FARRELLHowever, the way the regulations are written, regardless of that background, these universities have to take on a huge undertaking administratively to make sure that they're in compliance. So there's a lot of things out there. There's a lot of things -- and as we know, the regulations, the final rules on the implementation of the (unintelligible) Act just came down. So it continues, the challenges and the administrative requirements continue.

  • 13:45:40

    NNAMDIAnd when you hear us refer to OCR on this broadcast, that is the Office of Civil Rights in the Department of Education. I'd like to go to the phones to Bob, in Alexandria, Va. Bob, you're on the air. Go ahead, please.

  • 13:45:52

    BOBYes. I want to comment of a parent of a young woman who was drugged and sexually assaulted on -- actually at an off-campus party, oh, it's 10 years ago. This happened at -- the assault actually happened in Chicago. And my experience was very sad. One, it was reported -- my daughter reported it. She was a freshman. And she reported to the campus security office, which the college wasn't actually in Chicago. And then she reported it to the Chicago P.D.

  • 13:46:32

    BOBAnd Chicago P.D. said you simply don't have a case here. There's not, you know, there's no bloodied, cut-up victim. And as a father, you know, I sort of wanted to fly out and raise all sorts of hell. And my daughter didn't want me to do that, which I'm not sure I was right or wrong in not going out. Now, the university took it seriously. And I think Chicago's view was that there's just not enough evidence here to identify the perpetrator or what have you. What bothers me…

  • 13:47:04

    NNAMDIWhat did the university ultimately do?

  • 13:47:06

    BOBNothing. There was no, I mean, the university investigated. Because the woman who was the detective simply told my daughter there's no case here. Simply put, we -- they just didn't do anything.

  • 13:47:20

    NNAMDIWell, that was the criminal procedure. How about the university…

  • 13:47:22

    BOBThat was the criminal. Now, here's what really bothers me.

  • 13:47:25

    NNAMDIWe're running out of time, quickly, so please be as brief as possible.

  • 13:47:27

    BOBOkay. This individual was spotted around university -- the colleges multiple times. There was never any follow up. The -- women of that age don't want to push these issues. This is a very upsetting issue for them. And I don't think they're getting enough support, whether it's legal or not, about…

  • 13:47:50

    NNAMDISo are you in favor of what the Office of Civil Rights is doing, applying Title IX to many of these cases? Are you in favor of that?

  • 13:47:58

    BOBIf that's what it takes, fine. But it really has to be the university.

  • 13:48:01

    NNAMDIOkay. Thank you very much for your call. Universities are actually put in pretty awkward position here, aren't they, Janet and Sara and Megan? Since they're effectively responsible for protecting students from sexual attacks, protecting the rights of students who are victims of sexual attacks, but also protecting the rights of students who might be falsely accused of attacks. That seems -- and I'll start with you, Janet Halley -- like a very difficult needle to thread.

  • 13:48:32

    HALLEYYes, it is. And I think in the current environment in which we're so seriously trying to correct under enforcement. We're in the danger of -- and in fact actually are -- beginning to go into that new red zone of over enforcement. So, yes. But I think that if we think in cool, calm and collected way about how to sort the strong cases out from the ones where there isn't sufficient proof, how to deliver support, even where we can't deliver holdings of responsibility and sanctions, we can do a lot, even in cases where there's -- the evidence is problematic.

  • 13:49:15

    HALLEYWhat I don't want us -- to see us doing and what combing preponderance with a whole lot of other changes that are tilting in the new direction, is we are going to hold innocent people, people who are the wrong person for actual sexual assaults. And we're also going to hold people responsible for sexual assaults that were mere social disagreements. I would add that (unintelligible) OCR is playing an important role here.

  • 13:49:45

    HALLEYTheir documents from 2011 through 2014, running right through some of the disclosed settlements, are arguing for the definition of sexual harassment that limits it -- that extends it all the way to all unwanted sexual conduct. That leave out other elements that are key to the -- this claim as it's been defined by the Supreme Court to…

  • 13:50:13

    NNAMDIWe're running…

  • 13:50:14

    HALLEY…severity, pervasiveness, and impact tested by a reasonable person standard. All of those are chopped off and you see this language that could include all the social disagreements that go on in sexuality of students. They can't all be sexual harassment. Right? We've got to reserve that tool…

  • 13:50:36

    NNAMDIThat's true.

  • 13:50:37

    HALLEY…for the serious conduct.

  • 13:50:38

    NNAMDIWe're running out of time very quickly. Sara Lipka, difficult needle to thread?

  • 13:50:43

    LIPKAYou know, from listening to Bob it sounded like the alleged assailant in the case was not a student at the university, but was just turning up at the university. And I think that's a signal of how high public expectations are of colleges right now to solve this issue. There's a question of whether they're really equipped for a process that has become very legalistic, very court like.

  • 13:51:03

    LIPKAThey want to protect students and they want to do the right thing, but some college administrators are saying that they're being held responsible for the wider failings of society and the criminal justice system. And when some college presidents have suggested as much, the response is very angry. The president of the University of Iowa said that ending sexual assault completely, probably wasn't a realistic goal. And that was interpreted as not trying hard enough.

  • 13:51:27

    NNAMDIFinal thoughts from you, Megan Farrell?

  • 13:51:30

    FARRELLWell, the statistics that we get from the Department of Education say that this is a real problem on campuses. And there are -- there's a great risk of trampling over the rights of a victim, potential victim, a potential perpetrator, but right now what campuses have in place from the OCR are a lot of directives about exactly what they have to do. And campuses have to follow those directives or run the risk of losing federal funding. So I think with the help of OCR's guidance, campuses can really set up a standard of review that will be very helpful.

  • 13:52:04

    FARRELLBut, again, I will go back to say that the language is very important. And campuses can't decide criminal action. They can decide violations of their policies and that's what they should really tailor their policies and their language -- to meet that standard.

  • 13:52:18

    NNAMDIMegan C. Farrell, Janet Halley, and Sara Lipka thank you all for joining us. I'm Kojo Nnamdi.

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