Discussion List for campus-based and allied personnel working to end gender-based violence on campus.

Dear colleagues;

As most people on this list understand, OCR investigations are the only meaningful source of accountability in terms of legal mechanisms that compel schools to comply with Title IX (real world lawsuits are largely meaningless for several reasons including that the legal standard of "deliberate indifference" is very difficult to sustain - and even when it can be proved, it doesn't give back to the victim the loss of her equal education because the lawsuit takes time and often is not resolved until long after graduation - and in many cases, the value of such a lawsuit isn't worth it for most lawyers who have to spend years litigating a matter that might produce 200k at the end - barely covers costs).

I've used OCR oversight as an aggressive form of legal activism since the early 1990s - and I intentionally ramped up my efforts to proactively "go after" schools with policy violations in the early 2000s after I successfully filed against Harvard to force them to retract their "corroboration" rule.  It was the first time (to my knowledge) that someone filed a case successfully without an actual case or controversy - using only "women as a class" as a client and essentially arguing that an illegal policy can be challenged on its face.  A student should not have to suffer the harm of an applied legal policy before OCR steps in.  This kind of challenge to the constitutionality of real-world statutes is common and as an impact litigator, it's the kind of work I do - so I figured it was worth a try against Harvard on the corroboration rule and I filed a complaint without waiting for an actual case to develop where the rule caused harm to specific student's rights.

I was pleasantly surprised that OCR agreed to open an investigation in that first Harvard case, where there was only an illegal policy at issue and no student had yet suffered harm.  But that decision by the Boston OCR office spawned a lot of new activism all over the country in the form of more aggressive policy-based OCR complaints, which in my opinion led inexorably to the new guidelines.  

What strikes me as unfortunate is the way the filing of complaints with OCR is perceived by schools to be as offensive, and that involvement by lawyers somehow makes things worse - yet when accused students file lawsuits or threaten to do so, schools too often fall all over themselves to accommodate.  I fear this is the result of far too much influence by criminal defense lawyers in the development of school policies over the years.  Schools that have modeled their Title IX procedures after the criminal justice system have caused a lot of grief for victims, and have provoked people like me to proactively target those schools for OCR complaints precisely because schools that have listened too closely to defense lawyers have evolved to become the worst offenders of victims' rights primarily because these models frame the role of the victim as a kind of prosecutor - which necessarily diminishes the idea that she has real "rights".  In the real world criminal justice system, so-called "victims' rights" statutes are largely meaningless or symbolic gestures that are either unenforceable or trivial in terms of ensuring the victim is allowed due process and making sure her constitutionally protected rights vis a vis personal autonomy and equality are zealously represented.  In a school-based system, there is no government entity and the victim is not the prosecuting agent.  There is no liberty at stake and there are no classic due process rules.  If anyone has constitutional rights at stake, it is the victim, not the accused, because the victim is covered by Title IX and the accused student is not.  With this correct premise in place, a school's system should tip in favor of the victim, if it tips at all, and yet most schools' policies disproportionately favor accused students.  It's irrational.

It's true that if the goal of a school is scandal-avoidance, siding with the accused is a preferable path.  But after the Clery Act, the truth about incidence rates cannot be fudged as easily as it once could - by schools that could deter reporting and claim low numbers by all sorts of "accounting" tricks that artificially kept numbers down.

Schools should be pleased that - at least in my cases - I am intentionally choosing NOT to file lawsuits because the purpose of my complaints is to improve the value of Title IX as a deterrent of sexual harassment and assault.  It is lawyers for the accused who create the most tension with threatened and actual lawsuits; actions that also incite and divide students on campus.  (Mind you - as proactive as I am, I only file when asked.  Contrary to the bizarre suggestion by the radical organization FIRE which claimed in a footnote in its recent letter to Russlynn Ali complaining about the new guidelines that I filed a case against Harvard Law School AFTER reading news stories about Yale and that I had "no connection" to Harvard Law.  The letter suggests that I saw the news story about Yale and decided to file against Harvard Law - but the truth is - Harvard Law was under investigation in my case LONG before Yale.  And I had a rather strong "connection" to Harvard Law because they hired me to work on a Title IX matter and it was in connection with that relationship that it became necessary for me to file with OCR.  An investigation was soon opened against Harvard Law for multiple policy violations of Title IX.  I'm glad they hired me - they obviously needed some repair work - but had they never done so, I'm sure they would not now be under investigation).

Schools should be open to the idea of OCR complaints - whether by students in real cases, or activist lawyers like me who focus on policy - and seize opportunities to repair problems BEFORE the disasters happen.  U.Va. knew for a long time that it should change its burden of proof - but it refused to do so until OCR opened an investigation.  Even after the one Dan Carter mentioned was resolved in 2007, and OCR made it clear they needed to change their burden of proof to "preponderance of evidence", they continued to apply the illegally high standard.  It was not until i filed my case - and OCR opened another investigation SPECIFICALLY and ONLY on the burden of proof issue that U.Va. finally agreed to do what it should have done a long time ago.  The Yeardley Love case has nothing to do with it - but - because U.Va. had a reputation for refusing to change its standard, it was widely discussed when Love died that U.Va. was a school unfriendly to women and women's rights under Title IX.

The new guidelines are a great improvement - and lawyers like me (and SOC, etc.) will be monitoring all revised policies to see whether schools actually do all that is required and/or suggested - and I am already prepared to file complaints against schools that try NOT to do that which is merely "suggested" in the new guidelines.  It's always possible to do less - and general counsel offices in some schools are no doubt crafting ways of only MINIMALLY complying - but such an attitude will surely provoke more, not fewer, OCR investigations.

That certain entitles will be favored by OCR to conduct trainings, etc, on the new Guidelines will not change much because there are many, many ways that students are learning more covert tactics for analyzing and dealing with new disciplinary codes that provide less than what Title IX requires.  Harvard Law has a clinical program where they purport to be teaching students at other universities how to enforce their rights - and no doubt they will be involved in trainings, etc - but it is well known that Harvard Law is under investigation by OCR for multiple violations of Title IX because of the myriad ways its own policies were non-complaint.  If a school that purports to be "expert" couldn't even get its own policies in order, students around the country will know enough to look elsewhere for legal guidance.

The bottom line is, schools would be wise to be as aggressive as possible in doing the right thing under TItle IX.  Whatever is in place in terms of "prompt and equitable" policies to redress race, ethnic, religion, etc-based harassment and violence should be in place to redress sexual violence.  Period.  Any disparity between these policies that subjugates redress under Title IX by applying different policies and procedures will be challenged as a violation of Title IX's equity mandate.

As many of you know, I wrote the lead law review article on "promptness and equity" many years ago.  I'm glad to send to anyone who wants to see it again - and I am writing a new piece now - to explain all the details behind how Harvard Law, Princeton, U.Va. and Hofstra came to be investigated by OCR in my most recent cases, and how these cases raised many of the issues addressed in the new guidelines (more so than the Yale complaint.  Yale's policies - in some ways - are better than the other schools).  I want to make sure it is all in writing, soon, because accountability depends on truly INDEPENDENT advocacy - from individuals and groups that have NO allegiance to any university.

Wendy Murphy