Wednesday, November 28, 2018

What Does a Presumption of Non-Responsibility Mean in a Civil Context?

by Michael C. Dorf

In a post last week, I criticized the Department of Education's proposed new rules governing campus investigations under Title IX on the ground that they use a too-restrictive definition of sexual harassment. Although I acknowledged that a Supreme Court case involving fifth graders supports a definition that sets a threshold of "severe and pervasive" conduct to constitute hostile environment sexual harassment, I argued that in campus Title IX cases, decision makers should apply the well-accepted Title VII standard, which sets a more expansive "severe or pervasive" threshold.

My latest Verdict column might be deemed Part 2 of my miniseries on the DOE's notice of proposed rulemaking. In it, I take aim at the core of the proposed rules, which would make it harder for (mostly female) students alleging sexual assault or harassment by other (mostly male) to prove their cases. Whereas the Obama-era rules sought to minimize false negatives (that is, findings of no responsibility despite the fact that sexual misconduct in fact occurred), the proposed new rules seek to minimize false positives (that is, findings of responsibility despite the fact that the accused did not commit sexual misconduct). My main concern in the column is not whether the old or new approach is better, all things considered. Rather, I argue that insofar as the new rules would permit colleges and universities to require more evidence before finding a student responsible for sexual conduct, they are valid, but insofar as some of the new rules would require colleges and universities to require more evidence, they are invalid. That's because Title IX delegates authority to federal agencies (including the DOE) to write rules that "effectuate" the substantive policies of the statute; whether or not additional procedural barriers to a finding of responsibility are a good idea, they cannot be said to effectuate the anti-discrimination mandate of Title IX.

In the balance of this essay, I want to conclude my mini-series by objecting to yet a third aspect of the proposed new rules. The proposed rulemaking would require that in their proceedings for determining responsibility for alleged sexual misconduct that schools receiving federal funds "include a presumption that the respondent is not responsible for the alleged conduct until a determination regarding responsibility is made at the conclusion of the grievance process." That requirement falls outside the scope of authority that Title IX delegates to DOE, per the analysis in my column. However, even putting that objection aside, the presumption of non-responsibility is wrong-headed because either redundant or confusing.

In a criminal trial, the presumption of innocence is a kind of shorthand for the rule that the prosecution bears the burden of proving the defendant's guilt. It can be understood to refer to what lawyers call the burden of production -- i.e., of bringing forth evidence: jurors should not draw any inferences from the fact that a defendant is being accused of a crime or has been indicted; the defendant is to be treated as innocent until proven guilty. And because the substantive threshold of proof required in a criminal case is proof beyond a reasonable doubt, the presumption of innocence gets operationalized as follows: a juror faced with evidence that is equivocal or that tends to show that the defendant was probably guilty but not certainly or almost certainly guilty will rely on the presumption of innocence to return a not-guilty verdict.

Although sensible and reasonably well understood within the context of a criminal trial, the idea of the presumption of innocence has migrated to other domains, where its use can be problematic. One troubling usage concerns its application to people accused of conduct that could be the basis for a criminal trial who are in fact not being subject to criminal prosecution. That's common in Title IX investigations, which are civil in nature. Similarly, during the Senate hearing regarding allegations of sexual assault by Brett Kavanaugh, some people said that Kavanaugh should be presumed innocent or that he should be presumed innocent until proven guilty.

What some of those people meant was that the Senate should apply a proof-beyond-a-reasonable-doubt standard--which badly misunderstands the nature of a SCOTUS confirmation process. Prof. Colb made the latter point (and others) effectively in an op-ed in the NY Daily News. To the extent that some critics of Title IX proceedings make the same move, they are likewise confused. The fact that conduct could be the basis for a criminal prosecution does not constitute a reason for employing all of the safeguards of the criminal justice system when that conduct is being evaluated in a non-criminal proceeding.

Other people (or perhaps some of the same people) mean something else when they invoke the presumption of innocence outside the context of a criminal trial. They suggest that the general public, and not just the jury, should treat someone accused of a crime as truly innocent unless and until there has been a conviction. This strikes me as quite a bad idea.

Suppose you are trying to decide whether to hire Betty as a home health aide for a loved one suffering from dementia. Betty has pretty good qualifications for the job, but she has been accused of sexually assaulting the last patient for whom she provided care. Let's imagine that you review the application and check references; you conclude that you're not sure whether Betty committed the sexual assault. If you were a juror in a criminal case and the prosecution presented the evidence you have been able to assemble, you would think there's a decent chance that Betty actually did sexually assault the last person for whom she cared, but you're not persuaded of that conclusion beyond a reasonable doubt. Does that mean you must hire Betty to care for your loved one because she's to be presumed innocent? I should hope not. In our daily lives we routinely and quite appropriately make judgments based on evidence that would not be sufficient to support a criminal conviction. Although getting or not getting a job is admittedly a big deal for Betty, it is not nearly as big a deal as going or not going to prison, and so the framework we deploy in the criminal justice system to limit unjust convictions of the innocent need not and mostly should not be used in our daily lives.

What are we to make of the presumption of non-responsibility that the DOE would have schools use in Title IX investigations? The DOE most certainly does not mean it as a shorthand for requiring proof beyond a reasonable doubt. Subject to limitations (that are themselves problematic for reasons I explore in the Verdict column), the DOE allows schools to use a preponderance-of-the-evidence standard in Title IX proceedings. Indeed, I assume that the DOE proposed rules refer to a "presumption that the respondent is not responsible" rather than a "presumption of innocence," because guilt and innocence are concepts we associate with criminal law, whereas responsibility and non-responsibility are the relevant civil categories.

But if not meant to invoke the higher threshold of proof required in criminal cases, what is the presumption of non-responsibility meant to invoke? It might mean nothing more than that the burden of production and persuasion--even if only by a preponderance of the evidence--rests with the Title IX officer who seeks to hold the respondent responsible. If that's all that is meant, then the presumption of non-responsibility is unobjectionable as a matter of substance, although a seeming invitation to confusion.

On page 136 of the notice of proposed rulemaking one finds the requirement of a presumption of responsibility; on page 138 one finds the requirement that "the burden of proof and the burden of gathering evidence sufficient to reach a determination regarding responsibility rest on the recipient and not on the parties." By referring to parties in the plural, that provision is meant, I think, to indicate that the recipient (i.e., the Title IX officer) should be doing the work, not the accuser or the accused, but a less-than-perfectly-careful reader of the proposed rule could think that because this provision already makes clear that the "prosecutor" bears the burden, the presumption of non-responsibility must refer to something else. I worry that the presumption of non-responsibility will be misconstrued to mean something like the criminal law standard, even if that is not what DOE intends.

The proposed rulemaking includes additional language that may be intended to shed light on the meaning of the presumption of non-responsibility, but the additional language is also confusing. It states:
This requirement is added to ensure impartiality by the recipient until a determination is made. The requirement also bolsters other provisions in the proposed regulation that place the burden of proof on the recipient, rather than on the parties; indicate that supportive measures are “non-disciplinary” and “non-punitive” (implying that the recipient may not punish an accused person prior to a determination regarding responsibility); and impose due process protections throughout the grievance process. Finally, pending the finding of facts sufficient for the recipient to make a determination
regarding responsibility, the requirement mitigates the stigma and reputational harm that
accompany an allegation of sexual misconduct. A fundamental notion of a fair proceeding is that a legal system does not prejudge a person’s guilt or liability.
It is not clear how presuming one outcome (non-responsibility) "ensure[s] impartiality." It would seem to ensure partiality to the accused. Now, to be sure, one side or the other must bear the burden of production and persuasion, even if only by a preponderance, i.e., even if the burden of persuasion only plays a role when the evidence is in equipoise. So in that sense, assigning the burden to the accuser/Title IX officer marks a departure from impartiality. But that's inevitable in any proceeding. Insofar as the presumption of non-responsibility simply restates who has the burden, it's substantively unobjectionable. But as noted above, a reader might readily conclude that it's meant to do something beyond that.

One such something it pretty clearly does is tell schools not to discipline or punish someone who has been accused of but not yet found responsible for sexual misconduct. That's fair enough, but one worries about how this will be operationalized in practice. Suppose Lisa claims that Bart sexually assaulted her. In principle, the regs would permit the school to keep Bart away from Lisa during the pendency of the investigation, so long as the restrictions on Bart's freedom are neither "disciplinary" nor "punitive." But whether measures are disciplinary or punitive is mostly a matter of the school officials' intent. Especially on a small campus or if Lisa and Bart travel in the same academic circles, one could think Bart would experience restrictions on his freedom as disciplinary or punitive, regardless of the school officials' intent. Worried about being deemed out of compliance, one can imagine school officials thus being reluctant to impose any substantial restrictions on the freedom of an accused during the pendency of a Title IX investigation. That, in turn, could lead to under-protection of victims.

Finally, to be clear, I think there is a way to construe the presumption of non-responsibility language that makes it sensible. But to do so requires rendering it essentially redundant with other aspects of the proposed rules. So the language is either redundant or confusing. Thus, the DOE would be wise to drop it from the proposed rule. Even if it does not drop the presumption-of-non-responsiblity language, however, for the reasons I explain in the Verdict column, it is invalid as beyond the scope of the authority Congress delegated.


David Ricardo said...

Perhaps someone could take the opportunity here to explain why it is that colleges and universities are even involved in the investigation and adjudication of sexual assault (or any crimes) involving their students. If the alleged assault took place off campus it would seem that the schools have no involvement in the matter, that it is simply another police/prosecutor investigation the same as if the participant(s) had not been a student. Administrative procedures could be put in place to protect the privacy of the parties and keep them separate while on campus.

If the alleged assault took place on campus, again it seems the school is not only not charged with adjudication, but ill equiped to do so. If an alleged assault take place in a condominium complex among its residents, for example, the condo board is not expected to adjudicate. An alleged assault in a factory is not investigated and prosecuted by the VP in charge of the factory. And given past incidents it would seem a school has no better training or experience or ability in the handling of these cases than a police department has in teaching Constitutional Law.

The school can act to allevaite problems while the case is being handled by the appropriate authorities. It can arrange to keep the parties separate; it can deny the accused access to certain school activities and if an acused is found culpable it can then dismiss the accused from the campus permanently or in a probationary period, depending upon the circumstances.

Colleges and universities, despite their likely arguments to the contrary, are not special. The insitutions and their students and staff and faculty should be treated like everyone else, no better and no worse. A school's mission is to educate. Leave criminal justice administration to those who administer criminal justice.

Joe said...

I take the idea is that few of these cases are prosecuted (higher standard of proof etc.) but a lesser burden such as being kicked out of school or a football team etc. can arise. This is important in part for the right to an education free of sexual harassment.