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Last week, the Department of Education’s Office for Civil Rights (OCR) released a of a of the University of Virginia’s (UVA’s) handling of sexual misconduct complaints. The letter announced that OCR and UVA entered into a resolution agreement, ending the review before OCR examined complaints for the 2012–13 and 2013–14 academic years and indicating that the investigation could have gone on much longer.

OCR’s findings were a mixed bag. The agency drew some very alarming conclusions given the actual evidence it found, made a few positive points related to due process, and also produced a few surprises with long-term implications.

Alarming Points

Among the alarming conclusions was OCR’s criticism of UVA’s handling of an informal complaint by several students against a faculty member for statements made in the classroom. Although it is impossible to evaluate the statements themselves because of redactions in the report (indeed, this letter was far more heavily redacted than previous letters FIREhas examined), the students emailed the professor to ask that he “stop using rape as a decontextualized example” in class. Though the students elected not to file a complaint against the teacher, the school had notice of their email and, according to OCR, should have investigated the matter to determine if the comments created a sexually hostile environment for the class.

OCR’s criticism is concerning for a few reasons. First, the classroom speech of professors at a public university is protected by the First Amendment and principles of academic freedom. OCR’s suggestion that the professor should have been investigated and potentially punished for his in-class speech—even when students were unwilling to file a complaint about it—underscores the chilling nature of the agency’s expansive interpretation of harassment. Despite the fact that several sources of OCR’s own guidance profess that Title IX must be interpreted in a manner consistent with free speech and academic freedom rights, the agency has undermined that position in recent years by pushing an overly broad definition of sexual harassment (“any unwelcome conduct of a sexual nature”) articulated in the agency’s 2013 “blueprint” for universities and colleges.

Given this , it’s no surprise that universities have since launched a number of controversial and high-profile Title IX investigations of professors for their in-class speech and out-of-class writings, some resulting in termination. It’s also no surprise that these proceedings have drawn and caused significant concern for the integrity of academic freedom in the collegiate community. As Peter F. Lake, director of the Center for Excellence in Higher Education Law and Policy at Stetson University, told recently, “It’s very obvious that the First Amendment is butting heads with Title IX enforcement. … This could be incredibly chilling for people who teach or write op-ed pieces about related issues.”

Next, OCR’s suggestion that the professor’s in-class statements might have created a hostile environment for the class is yet more evidence of the expansive nature of the agency’s interpretation of harassment. Though, again, we don’t know the content of the statements or their frequency, OCR implies its support for a group harassment theory with boundaries difficult to define or predict. Is a professor writing an op-ed for a local newspaper responsible for the impact of her words on any student who reads it?

Indeed, OCR confirms precisely how unwieldy its notion of group harassment can be when, later in the letter, it concludes that the chair of UVA’s sexual misconduct board (SMB), an associate dean of students, created the “basis for a hostile environment” by her responses on a campus radio interview. When asked why (at that time) UVA had not expelled any students for sexual assault, the chair answered that the SMB was not comfortable imposing permanent expulsion in two circumstances: (1) where the accused’s guilt was based on only 51 percent certainty (i.e., the preponderance of the evidence standard); and (2) when a student admitted guilt in an informal proceeding where no independent investigation took place. Her answers caused some students, interviewed later by OCR, to feel that the school did not take punishment of sexual assault seriously.

If the chair’s publicly broadcast statements, giving her view of the policy reasoning behind past Title IX proceedings, can create a hostile environment for students in the listening public (who may or may not ever have cause to encounter UVA’s Title IX process), OCR’s understanding of that term is in severe tension with courts’ understanding of an actionable hostile environment (as well as some of the agency’s own guidance). In Davis v. Monroe County Board of Education, 526 U.S. 629 (1999), the Supreme Court determined that hostile environment harassment in the educational setting is targeted, discriminatory conduct “that is so severe, pervasive, and objectively offensive, and that so undermines and detracts from the victims’ educational experience, that the victim-students are effectively denied equal access to an institution’s resources and opportunities.” The chair’s public comments on a single instance fall far short of this standard. They were certainly not pervasive. While they might be subjectively deemed severe or offensive to a student favoring use of the preponderance standard for expulsions (it’s difficult to believe that they could be called objectively offensive), reasonable minds have long disagreed over that standard’s sufficiency. Finally, OCR offers no evidence that any particular student was effectively denied access to educational resources or opportunities due to the chair’s comments. At most, its interviews evidence students who felt this could or may happen at some unspecified point in the future.

Former OCR attorney Hans Bader has noted the relevance of cases such as , 957 F. Supp. 306 (D. Mass. 1997), in which the court dismissed a disability-related hostile learning environment claim based on comments in a university president’s speech that were critical of the “learning disabilities movement.” While potentially offensive and hurtful to students with learning disabilities, the remarks, which were not directed at any particular student, did not rise to the level of severity and pervasiveness that courts find sufficient to establish a hostile environment. Moreover, the court noted, “Holding a university president liable for creating a hostile environment solely because of an unpopular speech would also have serious First Amendment implications.” (citing Brown v. Trustees of Boston University, 891 F.2d 337, 351 (1st Cir. 1989)). As Guckenberger serves to highlight, we should keep in mind that, with respect to the chair’s radio broadcast, we’re not talking about the impact of UVA’s actual implementation of its misconduct policy on particular students. We’re talking about an administrator discussing that implementation in a single interview, not directed at any student. OCR’s analysis improperly conflates the chair’s speech with harassing conduct; the latter is what Title IX is meant to prevent.

(Note: The pressure that OCR’s analysis here puts on schools to actively use expulsion as the appropriate remedy for guilt by a preponderance of the evidence is a fertile discussion for another day.)

Positive Points

There were a few bright spots in the findings letter. OCR expressed concerns about UVA’s ability to ensure fair and equitable disciplinary procedures under its sexual misconduct policy in place between July 2011 and March 2015, singling out several practices that raised due process concerns. Among them, OCR criticized the then-existing policy for the multiple roles played by the SMB chairperson during the complaint, hearing, and appeal process. The chair was often the first point of contact for a complainant, explaining the process, arranging interim measures, and contacting the complainant multiple times for follow-up. The chair was also in charge of selecting a hearing panel, determining what evidence would be considered, running the hearing as a non-voting member, drafting the decision, and defending the decision on appeal. OCR correctly identified the conflict of interest and potential for bias in this mix of duties:

[T]he same individual went from being tasked [under the policy] to “identify forms of support or immediate interventions” for the complainant to being a neutral decision-maker, and then to possibly defending a decision of the SMB Panel on appeal. The [policy] did not clearly explain the many roles played by the Chair of the SMB in the sexual misconduct grievance process, thus failing to identify a potential conflict of interest.

One wonders how the “single investigator model” praised by the White House Task Force to Protect FIREFrom Sexual Assault (see page 14 ) would fare under such an analysis.

OCR also criticized the policy’s mechanism for determining the evidence considered by the hearing panel. The process relied on the parties to identify witnesses and other evidence, which the SMB chair evaluated to determine what the panel would see. According to OCR:

The University had the responsibility to make an informed and independent judgment of what evidence the Panel needed to make a decision in a case of sexual harassment, including sexual violence. If the University had information relevant to the case being considered, it should have provided it to the Panel, regardless of whether the complainant or the accused requested that it be admitted or argued against admitting it at the pre-hearing conference.

This concern is important because, in these difficult and complex cases, often involving alcohol, either party may have limited access to information about the events in question. A fair and equitable process should require that whoever is investigating have an independent obligation to explore all facts and witnesses to the extent possible and present them as a neutral fact-finder to the hearing panel.

UVA addressed both of the above criticisms in a (and in its ), implemented in July 2015,

Surprising Point

Unexpectedly, OCR also raised a due process concern that bolsters FIRE’s argument that universities are not equipped to fairly and competently adjudicate serious allegations of sexual assault. The agency noted:

[T]he University did not ensure that SMB members had resources or training available to them concerning the interpretation of relevant medical and forensic evidence. According to several SMB members whom OCR interviewed, if panel members required more information about medical or forensic evidence, they turned to the Chair of the SMB to interpret the information for them. The Chair of the SMB did not have a medical background, and SMB members did not receive training on how to interpret medical and forensic evidence, including results of medical examinations and drug or alcohol tests, particularly when this evidence is introduced at hearings. [Emphasis added.]

We’re pleased to see OCR echoing some of the same arguments made by ��֭����’s Joe Cohn in his recent testimony before the House Education and Workforce Committee’s Subcommittee on Higher Education and Workforce Training during its hearing on “.” Joe argued, as he has many times , that the criminal justice system is better equipped to handle sexual assault adjudications than the administrators, professors, and often students that participate in campus disciplinary processes. One of the primary reasons is exactly the problem identified by OCR at UVA: The panelists who are expected to be reliable fact-finders in circumstances involving potentially criminal conduct are woefully ill-equipped for the task.

But while we’re happy to see the point made, it is doubtful that OCR would reach the solution proposed by ��֭����, namely, allowing law enforcement to handle the adjudication of allegations of sexual assault. To the contrary, OCR reiterates in its letter that the university has an obligation under Title IX to investigate and adjudicate these cases.

How, then, can a university meet its twin obligations of vigorously investigating and addressing campus sexual violence and gaining the expertise necessary to do so fairly? OCR’s letter to UVA is silent on the answer. But two potential answers come immediately to mind: Either those involved must receive training from law enforcement on the interpretation of medical and forensic evidence, or they must receive expert testimony interpreting such evidence. In its new misconduct policy, UVA appears to , providing that the investigator (assigned by the Title IX coordinator) may “consult medical, forensic, technological or other experts when expertise on a topic is needed in order to achieve a fuller understanding of the issues under investigation.” The investigator can, in turn, introduce the expert evidence or testimony to the hearing panel. As OCR’s letter pronounces the new UVA policy, if properly implemented, to be compliant with Title IX, this solution is presumably acceptable to the agency.

If this answer has the immediate allure of a logical solution, consider the predicate question: Why must OCR ask colleges to hire experts in order to mimic the procedural protections of the criminal justice system in the first place when, at every single college in America, the local criminal justice system already exists to do this? For the many colleges and universities not flush with large endowments, hiring the necessary forensic, medical, and technological experts (and often outside investigators) to ensure a fair adjudicatory process will either be a tremendous burden or just won’t happen. While it’s helpful to see OCR acknowledge that these types of protections are necessary to a fair process, it’s unfortunate that the acceptable solution will likely be an added financial burden to already bloated university administrative systems, and still not reach the level of rigor of the criminal trial process. OCR should instead allow schools to fulfill their Title IX obligations through closer partnerships with law enforcement that leverage the resources and expertise of both systems.

There’s much more to discuss in OCR’s findings letter to UVA, and FIREwill continue to monitor and report how this and other OCR impact university sexual misconduct policies and practices in the coming months and years.