Monday, November 19, 2018

Dear Secretary DeVos: That Should Be "Severe or Pervasive," not "Severe and Pervasive"

by Michael C. Dorf

Last week, the federal Department of Education issued a notice of proposed rule making that would provide guidance for how schools, colleges, and universities address allegations of sexual harassment and sexual assault under Title IX. The proposed rule follows up on the Trump DoE's earlier rescission of the Obama DoE's guidance, which had taken the form of documents issued in 2011 and 2014.

In one important respect, the proposed regulation is a step forward: it is a proposed regulation rather than a less formal administrative action.

In other respects, the proposed new rule will be controversial. Whereas the Obama administration's guidance emphasized the problem of under-enforcement by requiring the use of procedures that would reduce the risk of "false negatives" (i.e., circumstances in which real victims of sexual harassment or sexual assault came forward but no responsibility was assessed), the Trump administration's proposed rule swings in the other direction by allowing for procedures that will lead to fewer "false positives" (i.e., findings of responsibility in circumstances in which the person found responsible did not actually commit a sexual assault or engage in sexual harassment). To lay my cards on the table, I think this is a step in the wrong direction, because I think false negatives are a more common problem than are false positives, but I recognize that this is an area of contestation.

In this post I want to focus on an aspect of the proposed rule that strikes me as problematic. It defines hostile environment sexual harassment incorrectly (although the fault for that lies with the Supreme Court).

In case you're not up to speed: Title IX bars educational institutions that receive federal funds from engaging in sex discrimination. Just as an employer that ignored or inadequately addressed employee-on-employee sexual harassment or sexual assault would be complicit in sex discrimination for purposes of Title VII, so a school that does not adequately respond to sexual harassment or sexual assault violates Title IX. Sexual harassment takes two forms: quid pro quo and hostile environment.

The Supreme Court first identified hostile environment sexual harassment in the landmark 1986 Title VII case of Meritor Savings Bank v. Vinson, in which then-Justice Rehnquist, writing for the Court, approved a test that had been developed in the lower courts: "For sexual harassment to be actionable, it must be sufficiently severe or pervasive 'to alter the conditions of [the victim's] employment and create an abusive working environment.' " Subsequent SCOTUS cases involving Title VII have repeated the "severe or pervasive" definition. As recently as 2013, in a case involving alleged racial harassment under Title VII, the Court approvingly quoted the test in the disjunctive: To be actionable as creating a hostile environment, the conduct must be severe or pervasive.

Yet the proposed DoE rule sets as a threshold conduct that is both severe and pervasive. That's understandable. The Supreme Court made the same error in the 1999 Davis case incorporating the Title VII standard under Title IX. The Court said in Davis that student-on-student harassment would be actionable under Title IX where it is "is so severe, pervasive, and objectively offensive that it effectively bars the victim’s access to an educational opportunity or benefit." Why the shift from or to and? The Davis Court did not explain in detail. Indeed, it cited Meritor Savings as support for its test, even though Meritor used or.

Moreover, there is good reason for the test to be phrased in the disjunctive. One can imagine one single act that is so severe that, if unaddressed, amounts to a hostile environment. Likewise, it is easy to imagine a pattern of petty acts, none of them severe standing alone, that in the aggregate make learning impossible due to their pervasiveness.

Now, to be fair, the Supreme Court in Davis did appear to realize what it was doing. In an effort to justify its allowing a single severe act to go unrecognized it said this:
Although, in theory, a single instance of sufficiently severe one-on-one peer harassment could be said to have such an effect, we think it unlikely that Congress would have thought such behavior sufficient to rise to this level in light of the inevitability of student misconduct and the amount of litigation that would be invited by entertaining claims of official indifference to a single instance of one-on-one peer harassment. By limiting private damages actions to cases having a systemic effect on educational programs or activities, we reconcile the general principle that Title IX prohibits official indifference to known peer sexual harassment with the practical realities of responding to student behavior, realities that Congress could not have meant to be ignored.
Note, however, that this logic appears to be limited to the circumstances in which a school can be held liable in litigation. It has little bearing on the substantive standard. Moreover, Davis was a case involving two fifth-graders that would seem to have little applicability to college campuses. That's why the Court referred to "the inevitability of student misconduct," which seems geared towards 11-year-olds, not people old enough to vote and serve in the military. Put differently, by limiting damages liability for elementary school districts based on single acts by children, the SCOTUS should not be understood to have set forth a general conduct rule governing colleges and universities.

The Supreme Court should correct its own error the next time a Title IX sexual harassment case comes before it. In the meantime, I suppose that DoE's rule, if finalized, would fall within the scope of its delegation under the Chevron doctrine, given the language in Davis. In other words, DoE has the raw power to define hostile environment sexual harassment as limited to severe and pervasive conduct. But in light of what I've said here, there is no good reason why it should so limit the definition. As a conduct standard, colleges and universities (and where appropriate, even primary and secondary schools covered by Title IX) should be alert to address even single instances of severe conduct as well as to multiple instances of modestly bad (i.e., pervasive but not severe) conduct.

Postscript: I intend to copy and paste the foregoing, along with a link back to this page, as a comment on the proposed rule. As of the weekend (when I wrote this post), the comment period had not yet opened, because the proposed rule had not yet been published in the Federal Register. When it is, that will start the 60-day clock. If any readers agree with me and want to comment, they should feel free to borrow as much or as little of the above as they like, with or without attribution. Check back here for a link to where to comment in a few days.

1 comment:

David Ricardo said...

While I am certain that all of us appreciate Mr. Dorf's generosity in allowing appropriation of his remarks "without attribution" I would suggest that anyone who cannot develop original thoughts and would appropriate the comments here without quotation marks and attribution, thus claiming them as their own, is sufficiently intellectualy deficient that they should not be commenting at all.