On this popup podcast, Jennifer Braceras, director of Independent Women’s Law Center, talks with Samantha Harris from the Foundation for Individual Rights in Education about sexual assault on campus and forthcoming regulations from the Department of Education that establish how colleges and universities are to process such claims.


Beverly Hallberg:            Hey everyone. It’s Beverly Hallberg. Welcome to a special pop-up episode of She Thinks, your favorite podcast from the Independent Women’s Forum, where we talk with women and sometimes men, about the policy issues that impact you and the people you care about most. Enjoy.

Jennifer C. Braceras:           Hey there. This is Jennifer Braceras, Director of Independent Women’s Law Center. Today, we are talking about sexual assault on campus, and in particular, forthcoming regulations from the Department of Education that establish for the first time how colleges and universities should process such claims.

My guest today is Samantha Harris, Vice President for Procedural Advocacy at The Foundation for Individual Rights in Education, otherwise known as FIRE. FIRE, which is based in Philadelphia, works to protect the rights of individual students and faculty members at America’s colleges and universities, particularly with respect to the issues of freedom of speech, freedom of association, and due process.

At FIRE, Samantha advises students, faculty, and administrators on issues of free speech and due process, and she also lectures regularly on student rights at conferences around the country. I’m thrilled to have her with us today. Thanks Sam for joining us on the podcast.

Samantha Harris:        Thanks for having me.

Jennifer:           It is my pleasure. I’m excited to talk to you today, because we are hearing a lot these days about the problem of sexual assault on campus and about these new regulations that the department is allegedly going to drop any day. I thought we’d start our conversation by defining the scope of the problem. I want to ask you, is there a rape crisis on campus as the media would have us believe? I have two daughters in college. Should I be worried?

Samantha:        Yeah, I also have three daughters and they are not yet in college, but I think it’s important to understand a lot of, particularly the previous administration, but a lot of people still throw around the statistic of one in five. One in five college women is going to be the victim of a sexual assault.

The thing is that the surveys that arrived at those numbers, ask students about a wide variety of behaviors. A large number of the people who answered questions that ended up with them grouped in that victim category, were not people who believed themselves to be victims of sexual misconduct. In fact, a lot of them were people who answered no to the question, have you been a victim of sexual misconduct?

What a lot of the surveys did was they asked about certain behaviors. Have you ever been touched when you didn’t want to be, or have you had sex when you didn’t want to have sex? If people answered yes to those questions, then they were classified as victims. Now, that’s not to say that sexual assault is not a problem on college campuses, but the idea that 20% of college women are being raped I think just defies everyone’s understanding. If I believe, or if you believe that your child had a 20% chance of being a victim of rape on a college campus, no one would send their children to college. We’d be deploying the National Guard.

So, I think we have to acknowledge that there’s real problem, but I think that in escalating it to that [inaudible 00:03:44] , we sort of tip over to this moral panic that has led to the eradication of a lot of really important rights, and a loss of perspective on how we need to handle this.

Jennifer:           So, what do you think explains the climate of fear on campus that one in four young women are likely to be raped? I know you talk about the survey data that is misleading, but what do you think explains the feeling of students themselves, that this is a big problem, and that colleges are a dangerous place?

Samantha:        Well, I think that people in power on college campuses have redefined sexual misconduct, and they talk about sexual consent in a way that really does bring a lot of people under this victim umbrella. On a personal level, I’m not sure that that’s good for anyone. I often wonder what my own college experience would have been like if the people who I looked up to, my RAs and the administrators, had been saying, “Oh, you were drunk. You were this. Oh, you’ve been a victim.” I don’t know that that really helps people in the way that people currently seem to think that it does.

I think that when we look at all of these claims that are being brought, what I see is that the overwhelming majority of them are brought in good faith. Sometimes people talk a lot about false accusations, but that’s not my experience, and I read a tremendous number of these legal complaints and things like that, and I see that the overwhelming majority of them are brought in good faith, but a lot of them involve conduct, two people who have been drinking heavily, ambiguous conduct that I think has been defined a certain way on campus, but that doesn’t really comport with the legal understanding of consent or necessarily with how we should be treating these things.

Jennifer:           That’s a very good point, cause I read somewhere that Brown University actually defines any intoxicated sex as assault, which raises the question for me, if two people are drunk and have sex, which one is the victim?

Samantha:        Well, and that’s very interesting because what we’ve been seeing in court, a lot of these cases where students have been expelled for sexual misconduct without what they believe to be a fair process, a lot of students have ended up suing their universities. There are a lot of different types of claims they bring, but one of the common claims is actually a Title IX claim, saying that the university’s disciplinary process itself and the way the university adjudicated a claim of sexual misconduct, discriminated on the basis of sex, in this case against a male student.

One type of Title IX claim is what we call Selective Enforcement, which is to say that the university enforces its policies differently depending on the sex of the person. These Selective Enforcement claims we’ve been seeing used increasingly in cases where both parties had been drinking heavily and where the … Now, just to back up for a second and be clear, if you’ve been drinking heavily and you sexually assault somebody, your intoxication in no way excuses you from having committed a sexual assault. What we are talking about is cases where the claim arises not from a claim of force, but from a claim that the other party was simply too drunk to provide valid consent, right?

So, a lot of these cases arise where you have two people, they’ve been drinking heavily, and one person will say afterwards in the clear light of day, “Well, you know what? I didn’t know what I was doing. I was too drunk to consent.” So in those cases, in increasing numbers, we have been seeing the other party, typically the male student say, “Well, wait a minute. I was also too drunk to consent. So how come you are prosecuting me and not her?” In an increasing number of cases, we’ve seen courts letting those selective enforcement claims move forward on those grounds.

Jennifer:           Right. I believe there was one involving Amherst College where the Title IX claim was allowed to go forward, but then the parties settled after that ruling. So, we don’t know what would have happened, but it is an interesting point.

I was thinking about this because when I was in college, I actually do know somebody who was a victim of sexual assault, not in the sense that we’re talking about, but this is actually a situation where somebody came into her unlocked room at night wearing a ski mask, which is quite terrifying, and molested her. Luckily this person was chased down the hall by the roommate and the roommate’s boyfriend who were there and were awake in another room. The person was caught, and they were able to go to the administration. Well, the administration really did nothing about it, because this person was a legacy whose parents donated to the school, yada, yada. But the case did proceed in criminal court, and was resolved there.

My point is that not so long ago, colleges really didn’t take some claims of sexual assault seriously.

Samantha:        Right.

Jennifer:           Now the pendulum seems to have swung in the opposite direction. Why do you think that is?

Samantha:        Well, I think that you hit on something when you said that part of the reason you asked before, “How did we get to this place of fear on campuses?” I think that around 2009, 2010, activists started to bring to the public’s attention the fact that, too often universities were covering up cases of sexual assault or sweeping it under the rug, particularly, as you say, if the student was involved with a high profile athlete or a legacy, and that is shameful. So in light of all of that attention, that’s when the Department of Education and the Office For Civil Rights under President Obama, decided to become more aggressive about enforcing Title IX on campuses.

Just to be clear, Title IX prevents sex discrimination on college campuses, but over the years, a series of court decisions and administrative regulations have established that sexual harassment and assault can be a form of sex discrimination, because if you are being systemically harassed on campus, even if it’s by another student, and you tell the school about it and they do nothing, the effect on you may be discriminatory. If you can’t get your education because you’re continually reporting to the school that you’re being harassed sexually and they do nothing about it, what courts and the government have held is that that is a form of sex discrimination prohibited by Title IX.

That’s why, just in case anybody’s not clear on it, because I’m so steeped in this stuff that I’ll sometimes just talk about it without backing up, and that’s why we are talking about sexual harassment and sexual assault in the context of Title IX, which is a federal law requiring schools, as a condition of receiving federal funds, to prevent sex discrimination in institutions of, well not only higher education, but K to 12. Here, though, we’re talking primarily about institutions of higher education.

Jennifer:          I’m glad you raised that, because some people would say, “Well, look, we’re talking about sexual assault. That’s a crime. Why don’t we just leave that to the criminal justice system?” The answer is exactly what you said. That federal law Title IX, as it’s been interpreted, requires colleges and universities to address these issues. Also in the case of the example I raised earlier, it’s not just a criminal matter, there are other factors. Sometimes students just don’t want to have to see the person on campus. So, while things are pending in the criminal justice system, or even if there’s not a case brought in the criminal justice system, they might require, for example, that they’re not in the same classes, or that the housing assignments are changed. So colleges have obligations outside of the criminal law.

Samantha:        Correct. So, in 2011, the Department of Education, which is responsible for administering Title IX on campuses, began to take a much more aggressive approach to investigating schools for alleged Title IX violations, to addressing the way schools need to handle sexual misconduct claims. One of the things they did in this Dear Colleague letter that they issued in April 2011, was to direct schools to use what we call the Preponderance of the Evidence Standard when adjudicating sexual assault claims. So that just means more likely than not. They also required schools, if they offered an appeal, to offer a dual right of appeal. So you have a situation on most campuses now where, if the respondent can appeal from a guilty finding, the complainant can also appeal from a not guilty finding.

Samantha:        So a number of the lawsuits actually stem from instances where someone was found not responsible and the complainant appeals, and then the student was later found responsible. So that was something introduced in 2011, and the Department of Education also discouraged schools from allowing the parties to cross-examine one another.

So, you had this overcorrection, essentially, where there was this perception that schools were not doing enough about sexual misconduct, but now, or at least from 2011 to 2017, there was this intense pressure on schools, at the risk of losing their federal funding, to be more aggressive about it, and I think for a lot of schools, they took a shortcut from, “Well, being aggressive means finding more people responsible. So we’re just going to take these steps that make it easier to find people responsible.” Whether that was getting rid of a hearing, not allowing the parties enough time to review the evidence, not giving parties enough notice.

One of the problems here is that I think a lot of people look at this as a zero sum game, where it’s sort of complainant’s rights and respondent’s rights, but what I see when I look at these cases, is that universities genuinely botch these cases in ways that harm both parties. You read complaints by victims of the way schools handled their cases that are just unconscionable. You read claims by accused students of the way universities handled their claims in ways that are just unconscionable.

Jennifer:           So give us an example, just to put a human face on it, of cases that you’ve read about or been involved in where the accuser was treated unfairly, and then another example of where the student who was accused was treated unfairly.

Samantha:        Well, there was an interesting case, I believe it was at the University of Kentucky, where an accuser actually brought a claim of sexual misconduct, and the University, and this is actually a very interesting one, because it shows you also how these due process rights are necessary to protect both victims and the accused.

So this student brought a claim of sexual misconduct. There was a hearing. For some reason, either in the first hearing, either she didn’t attend or the accused student couldn’t attend, and they held it without him. He was found responsible, right? Then he appealed and said, “Well, wait a minute, you denied me my due process rights. I didn’t get a chance to testify or she wasn’t at the hearing.” So the university said, “You’re right, we need to have another hearing.”

So they had another hearing. Then at the second hearing, basically there were three hearings, each of which were so riddled with procedural errors that the accused student appealed, and it got kicked back down for another hearing. So by the time this thing was headed into its fourth hearing, the woman filed a lawsuit and said, “Listen, forcing me to relive this four times because you can’t hold a hearing, that affords this person has procedural rights. You know, you are forcing me to relive this and retraumatizing me again and again and again.” And the court that yeah, the university had just horribly bungled this. Then of course, you have a lot of, if you look at the cases, [inaudible 00:16:42] and things like that, immunity, there are a lot of cases that just involve a systemic, allege at least a systemic effort on the part of schools to overlook misconduct by athletes and things like that.

You know, I think the news is, is pretty rife with those stories, but what we see every day is accused students coming to us and saying, “Hey, I’ve been called in for a meeting. All they told me is that I’m alleged to have committed some kind of misconduct. I don’t know what they want to meet with me about.” Students are going into these things blind, representing themselves. Often the university has got a lawyer, but the student is in there representing themselves. I just spoke to a student the other day who, the university called him into meet about something, didn’t give him any details, and didn’t tell him he was entitled to an advisor. So he just went in there blind, basically. This happens all the time.

Jennifer:           Wow, that’s really disturbing. What did they say in their defense, these universities about why they wouldn’t at least give the person a heads up about what the allegation is? That just seems so basic.

Samantha:        Well, university’s typical response when we say, “Well, why aren’t you giving students more due process protections?” Is they’ll say, “Well, campus discipline is really an educational process. It’s not punitive. It’s not a court of law, it’s just educational.” If you’ve talked to any students or their families who’ve been found responsible on campus for sexual misconduct, the idea that it’s educational just blows apart.

Listen, if you actually commit sexual misconduct on campus, the consequences should be serious, but when you look at what happens to these students’ lives, it really underscores the need for a fair process. These students can’t get into other schools. They lose job offers, they suffer from depression, anxiety. We hear a lot about suicide attempts. There’s a group called FACE, it stands for Families Advocating for Campus Equality. It was a group founded by the mothers of some students who were found responsible for sexual misconduct without a fair process. Their stories, they have some testimony that they gave in opposition to a bill in California that related to campus sexual misconduct, and the stories are just heartbreaking. So the idea that this is nothing more than an educational process, and so you don’t need these procedural protections, just falls away as soon as you hear what the actual impact on these students’ lives is.

Right, right. So there’s two other things I really want to make sure I get a chance to talk to you about. One of them is an article that you wrote recently, a Law Review article that chronicles the case law on this, and I’m hoping that you could just tell us a little bit about the legal trends and where courts are coming down on these cases brought by students who said they were wrongfully accused.

Yeah, it’s a really interesting area of the law, because for a long time it’s been established that students in campus proceedings at least in public universities have due process rights, but the contours of those rights were not very well fleshed out. What’s happened since 2011 is that more than 500 accused students have filed suit against their universities alleging denials of fair process, due process at public universities, sex discrimination, breach of contract at private universities, and courts have really had to start taking a closer look at campus judicial processes, because back when campuses were primarily adjudicating things like plagiarism, the traditional posture of course was very hands off, “This is really within the school’s wheelhouse to handle and it’s not our place to second guess.” Now that you have schools essentially operating these parallel criminal justice systems, courts have begun to recognize that they need to take a closer look at this.

So you had, in the due process context on public university campuses, the contours of due process really being more fleshed out, and courts looking at the details of what that means. Does it mean you have to have a hearing? Does it mean that there needs to be a right to cross-examination? In the Title IX sex discrimination context, courts have really been looking at well, when a university holds a disciplinary proceeding that really seems rigged against one party, is that sex discrimination? The court decisions really, they do vary. They tend to be very fact-specific, and we even have some splits among the circuits evolving about cross-examination and other things like that. Generally, the trend has really been that, courts, in comparison to what they were doing 30, 40, 50 years ago, are really looking more closely at campus judicial systems, and they’re not just taking that traditional hands-off approach.

Jennifer:           Have these students been successful? What is the success rate, would you say, of cases of students who sue their universities?

Samantha:        Well, that’s difficult to say. When it comes to the legal decisions and whether they go down in favor of the university or in favor of a student, I would say it’s close to 50-50, but what we see is that a very large number of these cases settle. Well, while we don’t know the terms of these settlements because they’re largely confidential, generally speaking, particularly if the settlement comes after the university loses a motion to dismiss, which is typically what happens. If a university loses a motion to dismiss, they can either proceed onto the next stage of litigation or they can settle.

What we see is that a very large number of these cases that survive motions to dismiss do settle. Given the fact that they settle after the university has suffered a setback, I think it’s reasonable to assume that the settlement gives the accused student at least some of the relief that they were looking for.

Jennifer:           One thing I think is interesting is that even though there are so many cases being brought, and even though schools are receiving some adverse determinations and certainly settling cases out of court, they don’t seem to be changing their policies. In other words, they seem to just regard these settlements as nuisance value settlements that, “We’ll just pay to make this go away, but we’re not going to change the underlying policies that led us to be sued in the first place.” Is that correct?

Samantha:        By and large, yes. There have been some instances, for example, in Michigan, the sixth circuit held that public universities have to offer a live hearing with cross-examination. So public universities in the sixth circuit after that decision did have to change their policies, but keep in mind that universities are getting litigation from both sides.

There are also still a large number of suits by complainants alleging the universities have mishandled their cases. So it’s very interesting that the case in 1999, Davis v. Monroe County Board of Education, that first established a private cause of action, meaning that students can actually get damages from their university for violating Title IX. In the dissent in that case, Justice Kennedy predicted a flood of litigation. He said, “There’s going to be floods of litigation from both sides. You’re going to have people saying that the school has been deliberately indifferent to their claims of harassment, and then on the other side you’re going to have people claiming that the school’s efforts to address it violated their due process rights.” When you read that dissent now, more than 20 years later, you feel like he was looking into a crystal ball. Cause that’s exactly what happened.

So universities really are getting squeezed from both sides, and it may be that their calculation is still, both in terms of the publicity and the financial, but these accused student cases are less financially and costly and less costly in terms of negative publicity than is lawsuits by accusers. I don’t know exactly what’s going through their minds, but we do know that they’re reluctant to change their policies.

I suspect that they are going to fight tooth and nail when these regs come out not to have to adopt more of these procedural protections.

Jennifer:          Well, that is a perfect segue into the last thing I want to ask you about, which are these regulations. Maybe you could just give a bit of background on what the goal of the regulations is and what they’re expected to say.

Samantha:        Yeah. So when the Department of Education issued its Dear Colleague letter in 2011, that was not a formal regulation. That was something that the department sort of couched as mere guidance, but in fact it was treated by most schools as having the force of law, because it was backed up by the threat of losing federal funds. It was really that Dear Colleague letter and the aggressive enforcement that followed, that ushered in this era of reduced due process protection.

So what the Department of Education under the Trump administration did was to take a look at this and say, “Okay, something needs to be done. We have this unofficial sub-regulatory guidance out there. It’s led to all of these consequences. We need to actually take a look at what’s happening on campus and go through a formal rule-making process, and issue regulations around how universities need to handle Title IX adjudication.” So that’s what they did. In the fall of 2018, they issued a Notice of Proposed Rulemaking, and put the regulations up for notice and comment. Now that alone is a big difference from the Dear Colleague letter, which was issued without any notice and comment. So no input from all of the different stakeholders, whereas these proposed regulations have more than 130,000 comments on them that the department has been reviewing and integrating into their thought processes for the past year.

So the proposed rules had a lot of guidance as to the need for due process in this setting. The proposed regulations, and I keep saying proposed, cause we don’t know exactly what the final rule will look like until it comes out, because they’ve been receiving all of the stakeholder feedback for the past year. So until we see what the final rule looks like, there’s no way to know exactly what will make it into the final rule from the proposal. The proposed rules would require cross-examination. They require the university to give meaningful notice and to give the parties access to all of the evidence in their cases. All of these things that FIRE and other due process advocates have been asking for for years now. I think that they would go a long way towards making these processes more fair.

Jennifer:           So the response in the media and in the public on some college campuses has been really negative. If you just were to Google Betsy Devos Title IX regulations, what you would see is a host of articles saying that she wants to roll back protections for survivors, that these rules are going to retraumatize victims, and that she is favoring alleged rapists over the safety of students on campus. How would you respond to that?

Samantha:        The idea that they roll back protections is just, it’s simply not true. Not having a hearing, not allowing the accused person to see the evidence, those are not protection, right? It protects no one to have a process that’s unfair and unreliable. So I think that whole framework is just absurd, frankly.

Jennifer:           Right, and as you pointed out in this conversation, due process protects everybody. It protects the accuser, and it protects the accused. So really this is something everybody should be celebrating, in my view. But we do see a lot of pushback. What do you think will happen when the regulations come down?

Samantha:        I think there’s going to be litigation, quite frankly. I have a feeling there are groups that already have their complaints drawn up. Challenging these, I suspect we’re going to see motions to enjoin all or part of them, probably brought in jurisdictions that you know are likely to be favorable to that kind of claim and I think we’ll go from there.

Jennifer:           Interesting. Well, when they do come down maybe we can talk to you again to analyze what’s happening, but for today, that about does it. We hope that our listeners learned something new from this conversation, and if anyone is interested in learning more about sexual assault and due process on campus, they can take a look at Samantha’s website, which is thefire.org, is that right?

Samantha:        Yep.

Jennifer:           Thefire.org. Please also check out IWF’s January policy focus on this topic, which you can find on our website, which is iwf.org.

If you enjoyed this episode of She Thinks, we would love it if you would take a moment to leave us a review on iTunes, and please share this episode on social media. From all of us here at Independent Women’s Forum, you’re in control. I think, you think, she thinks.