“Dear Colleague” Letter Creates Controversy

Tim Burke, Manley Burke, tburke@manleyburke.com

Some studies project that as many as 25% of female college students are victims of inappro­priate sexual contact during their student years. Sexual as­sault can of course happen to a male, but the victim is far more frequently female. Recently, this troubling issue has received a tremendous amount of news coverage throughout the country. In Arizona, a new member of a women’s frater­nity alleged she was raped in a fraternity house after she was slipped a date rape drug. She sued the alleged perpetrator, the fraternity chapter, and the university. The university responded in part, by telling the victim ‘s fraternity that if the university were found liable, the university would seek com­pensation from the women’s group. This despite the fact that the women’s fraternity was not a defendant in the lawsuit. On a North Carolina campus, a woman filed a complaint alleging that she was sexually assaulted. She courageously spoke out publicly about the incident. In response, the uni­versity charged her with violating its honor code because raising the issue publicly was “disruptive or intimidating.”

The Obama administration has increased its efforts to address sexual assault and sexual harassment on Ameri­ca’s college campuses. But those efforts have not been with­out controversy. In 2011, the Department of Education’s Office of Civil Rights (“OCR”) issued a “Dear Colleague” letter advising colleges and universities that compliance with Title IX necessitated the implementation of a “preponderance of the evidence” standard in disciplinary proceedings involving allegations of sexual assault or harass­ment. That standard has been described in a variety of ways. On a scale of 100% certainty, it is said to be 50% + 1. To put it another way, “preponderance of the evidence” means that it is more likely than not that the accused committed the alleged offense.

At the time of the “Dear Colleague” letter many schools were already using the “preponderance of the evi­dence” standard in their disciplinary proceedings. Others were using a “clear and convincing” standard, which requires a higher degree of proof but is still well short of the criminal standard of”beyond a reasonable doubt.”

When facing a college disciplinary proceeding, some students may wish that the “beyond a reasonable doubt” standard applied. However, the consequences of a college disciplinary proceeding differ greatly from the conse­quences of a criminal conviction. Still, some have criticized what they perceive to be a violation of the due process rights of the accused on college campuses by subjecting the ac­cused to a lesser standard of proof, and therefore making it easier to find the accused “guilty” and subject to discipline.

A more recent “Dear Colleague” letter has created additional controversy. On May 9, 2013 the Office of Civil Rights sent a “Dear Colleague” letter to the University of Montana. The letter, thirty-one single-spaced pages long, outlined how universities are to treat victims and the accused in sexual assault and sexual harassment matters. The great­est controversy has surrounded language that the Foundation for Individual Rights in Education (“FIRE”) argues is a vio­lation of the First Amendment. The letter found that speech that makes a member of the opposite sex uncomfortable be­cause of its sexual connotation could constitute sexual har­assment and should be treated that way by the host school.

In response to concerns, OCR issued a follow-up letter on May 29, 2013 pointing out that, “sexual harassment is unwelcome conduct of a sexual nature but that sexual har­assment is not prohibited by Title IX unless it creates a ‘hostile’ environment- that is, unless the harassment is suffi­ciently severe, pervasive or persistent such that it denies or limits the students’ [victims’] ability to participate in or ben­efit from the school’s program.” The OCR further stated that it was “important that students are not discouraged from re­porting harassment because they believe it is not significant enough to constitute a hostile environment.”

The August 12, 2013 issue of the Chronicle of Higher Education carried a front-page headline story, “Quiet no longer, rape survivors put pressure on colleges.” With the Center for Disease Control reporting that 19% of undergrad­uate women experience attempted or completed sexual as­sault while in college, the headline is not surprising.

The Fraternity and Sorority Political Action Com­mittee and the related Fraternal Government Relations Coali­tion are among those critical of the OCR’s standard of proof decision and the sexual harassment language. Still, the fact remains that college women, including members of women’s fraternities and sororities, are far too frequently the victims of sexual assault or harassment. Greek women, and indeed all students, are deserving of the ability to complete their college experiences without being degraded and victimized by unwelcome sexual conduct-many Greek groups already have strong policies and programs in place to prevent such conduct. But, if anything, perhaps the priority for both men’s and women’s groups should be to stand together to confront the problem even more strongly, rather than fighting with those who are attempting to do so.