Senate bill Would Further Undermine Due Process on Campus

by HANS BADER

Historically, most colleges used a “clear and convincing” evidence standard in student and faculty discipline cases, to safeguard due process. As Nicholas Trott Long noted in 1985 in the Journal of College and University Law, “Courts, universities, and student defendants all seem to agree that the appropriate standard of proof in student disciplinary cases is one of ‘clear and convincing’ evidence.” (Long, The Standard of Proof in Student Disciplinary Cases, 12 J.C. & U.L. 71 (1985)).

But in recent years, this due process safeguard has come under attack, most prominently in a legally-flawed April 4, 2011 “Dear Colleague” letter from the head of the U.S. Department of Education’s Office for Civil Rights, Russlynn Ali, who has demanded that colleges dilute the presumption of innocence in sexual harassment and assault cases by instead using a “preponderance of the evidence” standard that defines as guilty people who are as little as 50.001 percent likely to have committed the offense. I explained earlier why this demand was legally baseless, and not supported by either the Title IX statute or federal court rulings dealing with sexual harassment. (I was once a staff attorney at the Office for Civil Rights (OCR))

Now, the Senate draft bill to reauthorize the Violence Against Women Act (by Sen. Leahy’s Office) has inexplicably sought to expand the assault on due process. The draft VAWA bill would give OCR the power to set the “standard of proof” not only in harassment and rape cases, but also in other kinds of cases like “domestic violence,” “stalking,” and inappropriate behavior in dating relationships. It would do this even though OCR has jurisdiction (and expertise) only in certain kinds of discrimination cases (like sex discrimination and sexual harassment), not things like domestic violence.

It really is strange for a bill to delegate to a federal agency the power to lower due process protections and standards of proof to be used against private individuals. I have never seen any bill like this before, and it may be unprecedented. Giving OCR this power raises the danger that it could some day demand an even lower standard of proof like “reasonable grounds” or “probable cause” that would require discipline even where the accused is probably innocent as long as there is some possibility of guilt, effectively creating a presumption of guilt. It also sets a precedent for future legislation forcing institutions to lower the standard of proof in other kinds of cases that could lead to the firing of employees or explusion of students. It is also strange to delegate to an agency like OCR that administers one statute (Title IX, which prohibits sex discrimination and harassment) the ability to dictate the standard of proof for an entirely different statute that it doesn’t even administer (VAWA, dealing with domestic violence and violence against women).

One irony in the Senate bill is that while it would give OCR the power set whatever standard it chooses, OCR’s recent “Dear Colleague” letter itself implies that OCR lacks the power to redefine the burden of proof, by claiming that its “preponderance of the evidence” standard is the one commanded by federal appellate court rulings in discrimination cases — not the product of any administrative discretion on its part.

The draft VAWA reauthorization bill states on page 69 that colleges shall “apply the standard of proof recommended by the most recent Guidance issued by the Department of Education’s Office for Civil Rights,” which issues guidance such as “Dear Colleague” letters on the federal sex discrimination law, Title IX. That is, colleges shall use for domestic violence cases under VAWA whatever standard the Office for Civil Rights decides to use for sexual harassment cases under a totally different statute, Title IX. (Such “guidance” is not a formal rule, is not accompanied by safeguards like notice-and-comment, and cannot be found in compilations of laws and regulations available to the public like the Code of Federal Regulations.)

OCR’s recent “guidance” is embarrassingly faulty, relying on inapposite cases. OCR currently claims that a “preponderance” standard must be used by colleges in student discipline for sexual harassment and rape, because the courts, in handling discrimination cases, find employers and schools liable for discrimination based on a “preponderance” standard. (For example, if the company president fires an employee, the employee only needs to prove that the firing was based on sex by a preponderance of the evidence — not beyond a reasonable doubt — to successfully sue the company for sex discrimination.)

But that “preponderance” standard is the test for when an institution is liable for its own discrimination (and discrimination by its agents), not when a student is guilty. Harassment by students (or even faculty) does not automatically constitute discrimination by the institution. As the Supreme Court’s Gebser v. Lago Vista Independent School District decision makes clear, there is no strict liability under Title IX for sexual harassment. A school is deemed guilty of discrimination under Title IX based on sexual harassment committed by a student or teacher only when it is “deliberately indifferent” to the sexual harassment, and the harassment is “severe and pervasive” enough to deprive the victimized student of access to an education.

So the mere fact that an accused student is ever-so-slightly more likely than not to have engaged in harassment — that is, may have committed harassment under a “preponderance” of the evidence standard — does not show that the school was negligent, much less “deliberately indifferent,” if it failed to expel him in the face of evidence that was not clear and convincing, but rather closely-matched. That is made clear by cases like Doe v. Dallas Independent School District (2000), which rejected liability against a school district that, in good faith, failed to credit the victim’s contested allegations (even though they later turned out to be true); and cases like Knabe v. Boury Corp. (1997), which rejected liability against an employer that refused to discipline an employee for harassment, even though the court assumed he was guilty for purposes of summary judgment, because of the absence of clear, corroborating evidence of his guilt.

Since “harassment” by an individual only legally becomes “discrimination” by an institution when it responds culpably and inappropriately to allegations of harassment — not just when it gives the accused a presumption of innocence — the fact that institutions are liable for discrimination under a preponderance standard does not in any way call into question the longstanding tradition of using a “clear and convincing” evidence standard in college discipline cases (a tradition reflected in collective bargaining agreements, which may be why OCR’s recent guidance has drawn fire from the American Association of University Professors).

OCR’s demand that colleges use a “preponderance” standard has been criticized by many civil libertarians and journalists, such as the Foundation for Individual Rights in Education (FIRE); former Massachusetts ACLU leader Harvey Silverglate, in The Wall Street Journal; former ACLU Board member Wendy Kaminer; conservative syndicated columnists Michael Barone and Mona Charen; libertarian columnist Jacob Sullum; and columnist Jennifer Braceras in the Boston Globe. Lawyer Robert Smith of LeClairRyan argued that OCR’s position contravened federal law. Attorney Harvey Silverglate notes that under pressure from the Education Department, colleges are already finding students guilty of sexual harassment and rape based on very meager evidence, such as when police have previously concluded that the accuser made a false claim of rape.

Other things in OCR’s April 4 “Dear Colleague” letter have also proved controversial, such as its legally-unfounded claim that accused students should not be allowed to cross-examine their accuser, and its suggestion that schools should have to investigate (and perhaps punish) students based on anonymous allegations.

Contrary to OCR’s arguments, the fact that harassment occurred by a “preponderance” of the evidence is not a reason to hold the school liable, or force it to expel a student in the face of equivocal evidence. As a federal appeals court noted, “a good faith investigation of alleged harassment may satisfy the ‘prompt and adequate’ response standard, even if the investigation turns up no evidence of harassment…. Such an employer may avoid liability even if a jury later concludes that in fact harassment occurred,” (See Harris v. L & L Wings, 132 F.3d 978, 984 (4th Cir. 1998)). As another appeals court noted, “an employer, in order to avoid liability for the discriminatory conduct of an employee, does not have to necessarily discipline or terminate the offending employee.” (See Knabe v. Boury Corp., 114 F.3d 407, 414 (3d Cir. 1997).)

For example, a court held that an employer did not have to discipline an accused employee where the evidence did not convincingly prove the existence of harassment, citing the absence of a corroborating witness. (See Knabe v. Boury Corporation, 114 F.3d 407 (3rd Cir. 1997).) That employer escaped liability despite requiring more than a close case for discipline, as a preponderance of evidence would mandate. A corroborating witness is not needed to show proof under a mere preponderance-of-the-evidence standard.

Similarly, in another case, a court rejected an attempt to hold an employer liable for harassment because it failed to discipline a harasser where it was genuinely unclear at the time whether he was guilty: “It would be unreasonable, and callous toward [the accused harasser’s] rights, for the law to require Wal-Mart to discipline [him] for events he denies, of which Wal-Mart could not find evidence.” (See Adler v. Wal-Mart, 144 F.3d 664 (10th Cir. 1998).) Thus, it can be perfectly reasonable, and thus legal, to give the accused a firm presumption of innocence, especially where the accused has no previous history of harassment.

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Parent furor at bawdy sex ed: City’s eye opening lessons

A New York City education will now cover readin’, ’ritin’ -- and rubbers.

Sex ed, which becomes mandatory in city middle and high schools next year, is meant to stem unplanned pregnancies and sexually transmitted diseases among teens. But parents may be shocked by parts of the Department of Education’s “recommended” curriculum.
Workbooks reviewed by The Post include the following assignments:

* High-school students go to stores and jot down condom brands, prices and features such as lubrication.

* Teens research a route from school to a clinic that provides birth control and STD tests, and write down its confidentiality policy.

* Kids ages 11 and 12 sort “risk cards” to rate the safety of various activities, including “intercourse using a condom and an oil-based lubricant,’’ mutual masturbation, French kissing, oral sex and anal sex.

* Teens are referred to resources such as Columbia University’s Web site Go Ask Alice, which explores topics like “doggie-style” and other positions, “sadomasochistic sex play,” phone sex, oral sex with braces, fetishes, porn stars, vibrators and bestiality.
Told of the subjects her son could learn about, one Manhattan middle-school mom said, “They seem pretty outrageous.”

Shino Tanikawa, a SoHo mother of two daughters, including a high-school junior, also was taken aback. “I didn’t know how much detail they would get,” she said. But she added that many city kids learn about hanky-panky on their own.

Starting in the spring, the DOE will require one semester of sex ed in sixth or seventh grades and one in ninth or 10th. It says schools can pick any curriculum but recommends the widely used HealthSmart and Reducing the Risk programs and trains teachers to use them.

The curriculum “stresses that abstinence is the best way to avoid pregnancy and STD/HIV,” the DOE said.

Lessons include role playing on resisting sexual advances and advice on “negotiating condom use” with a partner.

The DOE says parents have the right to exclude their kids from lessons on “methods of prevention.” “Kids are being told to either abstain or use condoms -- that both are responsible, healthy choices,” said child and adolescent psychiatrist Miriam Grossman, author of “You’re Teaching My Child What?” The DOE “relies on latex,” she said.

But Grossman argues that the books minimize the dangers that pregnancy can still occur with condom use, and that viruses such as herpes and HPV live on body parts not covered by a condom.

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What IS going on in Britain's mosque schools? Beatings, humiliation and lessons in hating Britain

The punishment is almost medieval in its cruelty. Victims are forced to crouch down and hold their ears with their arms threaded under their legs. Beatings are often administered at the same time.

This brutal practice has its own name: the Hen, so called because those forced into the excruciatingly painful squatting position are said to resemble a chicken.

It is the kind of shockingly degrading treatment you might expect to feature in an expose of torture techniques, like say, the use of waterboarding (simulated drowning) on terrorism suspects. You’d be wrong, though.

In fact, the Hen is used to discipline children, many under the age of ten, at British madrassas, the after-school Islamic religious classes invariably attached to mosques.

We have been told of one little girl who was forced to stay crouched and contorted in front of her class for an hour.

‘It’s a particularly unpleasant and painful punishment,’ said Dr Ghayasuddin Siddiqui, a founder of the Muslim Institute think-tank, and one of the few Muslim voices in the country to speak out about the abuse of youngsters at madrassas.

The harrowing stories now emerging from such establishments are all too familiar to detectives in Lancashire, where there are 15 madrassas in Accrington alone. They have received at least 37 separate allegations against local Islamic teachers or hafizes, ‘holy men’ who have memorised the Koran by heart.

Among them is a girl who says she was hit and kicked in the leg and face, causing bruising. The victim’s age? Just six.

Then there’s the eight-year-old boy who was punched in the back several times for making a mistake in his studies, or the boy, also eight, who had his head pulled back by the hair for not praying loud enough, or the nine-year-old forced into the ‘Hen position’ before being punched on the back and slapped in the face for not learning his Koranic lines and talking in class.

These are just some of the incidents which have recently been investigated. Yet, so far, not one of the perpetrators has been brought to justice or even reprimanded. Nor are they likely to be. Why? Well, at least some parents, it appears, were pressurised into withdrawing complaints by their own community where the clerical hierarchy are afforded great deference.

Indeed, more than 400 such allegations of physical abuse have been made to local authorities in the UK over the past three years, but there have been only two successful prosecutions.

It’s a shameful indictment of the modern British justice system and one has to wonder if political correctness means the authorities are reluctant to vigorously investigate such crimes for fear of being labelled racist.

The true scale of the scandal is unknown. Many families, it is suspected, are reluctant even to report the ill-treatment of their sons or daughters for fear of upsetting their fellow Muslims. Such fears are more than justified. In some cases, parents have been intimidated and threatened for going to the police. So the brutal treatment meted out to Muslim children continues; in silence.

The plight of many students inside Britain’s madrassas — and the implications for wider society — was highlighted by the respected File On 4 programme on Radio 4 this week, and follows a Dispatches investigation on Channel 4 in February, which not only captured beatings on hidden cameras, but also pupils being taught hatred for the British way of life, which they were told is influenced by Satan.

Anyone with ‘less than a fistful of beard’ must be avoided ‘the same way you stay away from a serpent or a snake’, some children were instructed. Non-Muslims were referred to as the ‘infidel’.

In other words, religious apartheid and social segregation is being taught to a growing number of Muslim youngsters in our towns and cities; an agenda, it seems, increasingly being reinforced by beatings and brutality.

So how much influence do madrassas hold over impressionable young Muslims? The statistics are compelling.

There are now believed to be around 3,500 madrassas in Britain although such is the demand for them that new ones are springing up all the time, not only in mosques but also in living rooms, garages, and even in abandoned pubs. Some have only a handful of pupils; others several hundred. Overall, up to 250,000 children, aged between four and 14, attend madrassas, all dutifully attired in Islamic dress; girls in headscarves, boys in skull caps.

In a typical daily scene, students hunch over wooden benches, rocking backwards and forwards as they learn the Koran by rote in Arabic, as a man with a long, dark beard dressed in traditional shalwar kameez — tunic and trousers — sits at the head of the class or paces up and down.

More HERE