Not every Title IX complaint merits investigation

By Ruth O'Meara-Costello The Daily Record Newswire University investigations under Title IX into allegations of sexual assault and sexual harassment are creating increasing controversy. Recently, Laura Kipnis, a tenured professor at Northwestern University's School of Communications, wrote an account for The Chronicle Review detailing her experiences as the subject of an investigation into allegations that an article she published amounted to "retaliation" against students who had reported alleged sexual assaults on campus. Kipnis' story has prompted a wave of commentary in which the word "Kafkaesque" features with appropriate prominence, and Northwestern speedily concluded after her article was released that the preponderance of the evidence did not support the allegations against her. Still remaining, though, is the essential question of why Northwestern began an investigation at all - a question that, as an attorney representing students in university disciplinary processes, I have asked myself in several recent cases. Neither law nor policy requires universities to investigate complaints under Title IX that, on their face, do not allege a violation of that law or of the university's own sexual harassment policy. In reporting on her own experience, Kipnis writes, "As I understand it, any Title IX charge that's filed has to be investigated, which effectively empowers anyone on campus to individually decide, and expand, what Title IX covers. Anyone with a grudge, a political agenda, or a desire for attention can quite easily leverage the system." That is a cogent summary of the way that universities are currently interpreting and applying the Office of Civil Rights' requirements - but it is not a fair assessment of those requirements themselves. Title IX requires schools to "recognize and respond to sexual harassment of students," a mandate enforced by the Department of Education's OCR. OCR's most recent guidance issued after notice and comment rulemaking requires universities to investigative and take action if harassment is "sufficiently serious to deny or limit the student's ability to participate in or benefit from the program." None of OCR's guidance - including that which lacks the force of law - requires universities to bring the apparatus of a Title IX investigation to bear on complaints that do not actually describe sexual or gender-based harassment. Schools can choose to evaluate, at the outset, whether each complaint, taken as true, actually states a violation of the school's Title IX policy. When a complaint does not state such a violation, then the school might still reasonably respond to it in some other forum. But it can and should refuse to put both the complainant and the accused through the destructive and painful process of a Title IX investigation when it knows that there can be only one fair outcome. Deciding which complaints actually allege a potential violation of Title IX requires an understanding of what is and is not sexual harassment. Schools' policies differ from one another but nearly all generally track OCR's guidance. OCR defines sexual harassment the same way that it is defined under Title VII, which prohibits sexual harassment in the workplace: it is "unwelcome conduct of a sexual nature." It is of two types: quid pro quo sexual harassment, in which an educational decision or benefit is conditioned on the student's submission to unwelcome sexual conduct (rare in the context of student disciplinary cases), or hostile environment harassment (very commonly alleged). Hostile environment sexual harassment must be sufficiently serious to deny or limit a student's ability to participate in his or her education at the school. Whether it rises to that level is considered from both the perspective of the individual student and from the perspective of a "reasonable person" in his or her shoes; if a reasonable student wouldn't feel that his or her education was limited, then no sexual harassment has taken place. Whether actions rise to the level of a hostile environment depends in part on how severe they are, how often they have taken place, and for how long they have continued. In short, not every student dispute is sexual harassment, even if the dispute involves or is about sex. Nor is every statement that makes a student feel uncomfortable sexual harassment, even if the statement is about sex. In fact, even a crude sexual statement, if made only once, would not qualify if a "reasonable person" would not feel that it limited her participation in the school's program. Sexual assault is always sexual harassment - but sexual behavior that both parties invite or welcome is not, even if one student later has negative feelings about it or about the relationship with the partner. Because both students and faculty have First Amendment rights, as a matter of law students' perception that a particular expression is offensive does not establish a sexually hostile environment under Title IX. Of course, Professor Kipnis appears to have been accused of retaliation, not of directly sexually harassing students; the complainants in her case explained to the Huffington Post that they filed complaints due to what they saw as "factual inaccuracies" in her statements about one of their claims against another professor. Title IX regulations on retaliation make it illegal to "intimidate, threaten, coerce, or discriminate against any individual" for making a complaint or participating in an investigation. To treat any negative commentary on a matter, even if it contains factual inaccuracies, as retaliatory would be a serious danger to academic freedom and is not demanded by Title IX. On the contrary, it is inconsistent with that statute as it has been consistently interpreted by the courts. Choosing not to investigate the complaint should have been easy. Decisions about whether a complaint falls within Title IX might not always be as easy. OCR's guidance sets forth various examples of when conduct is and is not sexual harassment: a request for a date is not sexual harassment, even if unwelcome, but repeated requests that become threatening or intimidating could create a hostile environment. A required reading list including literature that portrays women in derogatory and submissive roles is not sexual harassment, but a group of male students repeatedly, severely harassing a female student on the bus home from school, including circulating sexually explicit drawings of her and following her, creates a hostile environment. In between those examples is a vast abyss into which many complaints fall in practice. These cases often present genuinely difficult questions about whether a student's behavior does or does not cross a line, but when those questions can be answered at the outset of a case, they should be. There is no justification for gathering further evidence when a university can determine immediately, from a complainant's description of the basic facts of his or her claim, that Title IX's standards have not been violated. In civil litigation, courts have the option of granting a motion to dismiss any claim when the plaintiff's allegations, assumed to be true, do not articulate a violation of the law. This keeps litigants and the court system from being dragged into a costly and time-consuming fact-finding process if the court can determine on the face of the plaintiff's complaint that the defendant is not liable to him. While formal motions to dismiss aren't available in the context of university disciplinary procedures, most schools' procedures, fairly read, allow them to decline to initiate Title IX procedures if allegations don't meet their definitions of sexual harassment. The procedures applicable to Professor Kipnis as a faculty member at Northwestern University only require the school to investigate "reports describing conduct that is inconsistent with Northwestern's Policy on Sexual Misconduct, Stalking, and Dating and Domestic Violence," and, as a matter of logic, don't demand action on reports describing conduct that is not inconsistent with the policy. The mere fact that a student writes "Title IX Complaint" at the top of the page cannot require the university to roll out the apparatus of Title IX proceedings, without regard to the nature of the student's actual allegations. Title IX investigations or hearings come at a high cost for all involved. Both complainants and respondents report that the process is extraordinarily difficult and stressful. Despite OCR's requirement that proceedings be "prompt" - OCR has offered 60 days as a guideline for most cases - they can stretch out for much longer. The delay itself can be professionally damaging to accused students, who may be unable to graduate or make decisions about employment or further education with a disciplinary matter pending. Certainly delay is tremendously emotionally damaging to both accuser and accused. Investigations or hearings nearly always involve a painful intrusion into the personal lives of all the students involved. Even a case that is conducted in a reasonably prompt manner carries serious emotional, and reputational, costs. Universities should respond appropriately to all complaints of sexual harassment or sexual assault. An appropriate response has to begin with a determination of whether the facts that a complainant is describing, assumed to be true, would amount to sexual harassment. Where they would not, commencing a Title IX investigation into the truth of those facts, a process that is stressful and difficult at best for all parties involved, is simply cruel. Accused students face a humiliating inquiry into their behavior as well as possible serious disciplinary consequences. (For many students expulsion, a possible consequence if a school finds a student responsible for sexual assault, is a consequence as seriously dreaded as a criminal charge, and even lesser disciplinary penalties can affect students for the rest of their lives.) For accusers, the process frequently causes serious emotional strain and sometimes distress. Where an inquiry can have only one outcome, it should never be commenced. ----- Ruth O'Meara-Costello focuses on criminal defense, employment and family law at Zalkind, Duncan & Bernstein in Boston. Published: Mon, Jul 06, 2015