Wednesday, August 29, 2018

Proposed New Sexual Misconduct Rule Imports Deliberate Indifference Standard

The New York Times is reporting that it has obtained a copy of its proposed rule addressing educational institutions obligations under Title IX to respond to sexual misconduct, which the Department of Education is planning to release for public comment.

Though the proposed rule contains many departures from the guidelines presented by the previous administration, right off the bat it is worth noting that at least it appears to retain the basic idea that sexual misconduct, even when it is a crime, is still a legitimate basis for investigation and discipline by colleges and universities. There are no wild proposals to outsource all campus investigations to police and prohibit universities from being involved.

Reportedly, however, the proposed rule makes it easier for institutions to avoid Title IX liability for insufficient response to sexual misconduct by essentially importing to the context of government enforcement the very narrow that the courts use for finding institutions liable for money damages. There are three components of that judicial standard that are reflected in the proposed rule: (1) it uses a narrow definition of sexual harassment*, and it only imposes liability when (2) a campus official with authority to address the misconduct have actual notice of the harassment, and (3) that the campus responds to that notice with deliberate indifference.

This proposed adoption of the judicial standard is misguided because the reasons that standard is so narrow absolutely do not apply to government enforcement of Title IX.  When the Supreme Court developed the standard for cases in which students sought money damages against an institution for its violations of Title IX, it explained that it had to be a narrow one because Title IX is primarily a contract between an institution and the government: the institution gets federal funding, but agrees to follow the government's rules about sex discrimination in exchange. Students are, essentially, third party beneficiaries to this contract. It would be unfair, said the Supreme Court, to blindside institutions with the possibility of paying large damages awards to their students, as a consequence of accepting these obligations owed to the government. As such, the Court said, we are only going to impose that kind of liability in a narrow set of circumstances: limited examples of sexual harassment, that the university essentially intended to ignore through its deliberate indifference to known instances or threats of such harassment.

Unlike judicial enforcement of plaintiff's claims for money damages, government enforcement does not risk blindsiding a university. It is always prospective in nature. The enforcement process, sometimes frustratingly so, gives universities ample opportunity to conform their policies and practices to OCR's requirements before they are ever faced with a financial consequence (loss of federal funding). In fact, no university has ever been subjected to that penalty. Universities always have an opportunity to decide, if they don't like the way the government is enforcing the law, to opt out of the contract in the first place, and suffer no penalty.  Consequently, as long as the agency's interpretation stays within the outer limits of Title IX, it can impose more specific requirements about what an institution needs to do to address sexual misconduct, and what misconduct triggers that response. There is no need to have an overly narrow definition of harassment, or the high burden of proving actual notice and deliberate indifference.

The proposed rule is maddening because it imports the narrow standard of judicial liability into a context that it was not designed to apply. And the result is that it would let universities get away with doing far too little to address a problem that impairs the civil rights of its students. The deliberate indifference standard as it applies in the courts lets institutions off the hook for doing almost nothing in response to incidents and threats of sexual harassment (and sometimes courts applying the deliberate indifference standard absolved institutions for doing *exactly* nothing!).

There are other specific provisions of the proposed rule that also deserve attention. It would permit institutions to use the clear and convincing standard. It would permit them to use informal mediation in serious cases like rape. It would permit them to ignore sexual misconduct that takes place in off-campus student housing. At the same time, it subjects them to liability for ignoring the rights of accused students, which, given that complainants are only protected by the requirement to avoid deliberate indifference, seriously tips the scales in accused students' favor.

When the proposal is official released, there will be an opportunity for public comment, which theoretically could persuade the agency to modify the rule before it becomes final. So it's not a done deal. Major changes, however, would be unlikely.

*Specifically, the proposed would require that sexual harassment be "so severe, pervasive and objectively offensive that it denies a person access to the school’s education program or activity." In contrast, the previous administration's broader definition was "unwelcome conduct of a sexual nature," that includes "unwelcome sexual advances, requests for sexual favors, and other verbal, nonverbal, or physical conduct of a sexual nature."