Colleges Must Abandon Controversial Sex Policy

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Colleges Must Abandon Controversial Sex Policy; May Raise Standard of Proof Because of Demands by Faculty

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WASHINGTON, D.C. (May 6, 2020) - Under new and binding legal rules just released by the Department of Education, hundreds of colleges and universities must abandon a very popular and controversial procedure to handle allegations of date rape under which a single official both investigates and then judges complaints.

Preponderance Of The Evidence

The new rules may also force many institutions of higher education to rethink whether they want to continue to judge such complaints based upon the lower evidentiary standard of "preponderance of the evidence," rather than the higher "clear and convincing evidence" standard, since the new regulations appear to require that the same evidentiary standard used to punish students for alleged sexual wrongdoing would also apply to faculty - something faculty are very likely to object to, says public interest law professor John Banzhaf.

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For example, one comment in the document released today "argued that the proposed rules would force schools in that situation to make a choice: either lower the standard of evidence required to dismiss a faculty member, or raise the standard of evidence for all claims to the standard used for dismissing a faculty member."

It also noted that, under the lower standard of evidence used by many universities to judge students accursed of sexual wrongdoing, "faculty may lose lifelong employment and suffer permanent reputational damage, and the preponderance of the evidence standard is insufficient to protect academic freedom and tenure."

So, says Banzhaf, if faculty object or refuse to accept the lower standard of evidence when their employment (apparently even those with tenure) is on the line, universities may be forced to adopt the higher standard of care to protect against findings of guilt (or responsibility) which are wrong, or at least not supported by sufficient evidence.

Handling Title IX Sexual Harassment Allegations

Banzhaf was also happy to learn that his suggestion that universities might use regional centers (consortia) in some situations to deal with complaints was hailed by the Department, saying that it "represent(s) the potential for innovation," and that the Department "would provide technical assistance . . . about pursuing regional center models."  It said:

One commenter examined variations on potential models for such regional centers, noting that one model might involve a consortium of institutions forming independent 501(c)(3) organizations to cooperatively handle member institutions' needs for investigation and adjudication of Title IX sexual harassment . . . ; this commenter urged the Department to remind recipients that such models exist as possible methods for better handling obligations under these final regulations, contended that suggesting such models without mandating them is consistent with the Department's overall approach of not dictating specific details more than might be reasonably necessary, and expressed the belief that different types of regional centers with different structures can be tried out and continually improved and refined for what works best in practice for different types of institutions, thus innovating better ways for recipients to competently handle Title IX sexual harassment allegations."

To this comment submitted by Prof Banzhaf, the Department replied:

"The Department appreciates commenters' recommendations for using regional center models and similar models involving voluntary, cooperative efforts among recipients to outsource the investigation and adjudication functions required under the final regulations. And the Department believes these models represent the potential for innovation with respect to how recipients might best fulfill the obligation to impartially reach accurate factual determinations while treating both parties fairly. The Department encourages recipients to consider innovative solutions to the challenges presented by the legal obligation for recipients to fairly and mpartially investigate and adjudicate these difficult cases, and the Department will provide technical assistance for recipients with questions about pursuing regional center models."

Banzhaf is an expert on sex discrimination, and has won over 100 cases of sex discrimination against women.

His complaints helped forced the Cosmos Club in D.C. to change a hundred-year-old rule barring members who were female, and led to the first female being admitted to a formerly all-male state-supported college.

He advocated for the changes noted above and others which were adopted, arguing that the prior rules were unfair, and in many cases a violation of due process.