Saturday, April 09, 2011

Education Department 'Dear Colleague' Letter Shreds Presumption of Innocence in Harassment Cases, Ignoring Supreme Court

By Hans Bader (An attorney who once worked at the federal Education Department)

To promote due process, some college disciplinary systems recognize a strong presumption of innocence, requiring clear-and-convincing evidence of guilt for discipline. That practice is now called into question by a recent Education Department letter that ignores a Supreme Court decision and federal appeals court rulings to the contrary.

In an April 4 “Dear Colleague” letter, the Education Department’s Office for Civil Rights (OCR) claims that schools cannot use a clear-and-convincing standard of proof typical in school disciplinary procedures for sexual harassment cases: “A school’s grievance procedures must use the preponderance of the evidence standard to resolve complaints of sex discrimination.” See Dear Colleague Letter: Sexual Violence Background, Summary and Fast Facts. “Preponderance of the evidence” means that if a school thinks there is as little as a 50.001% chance that the accused is guilty, the accused must be disciplined.

To satisfy this OCR requirement, schools that have long used a clear-and-convincing standard in disciplinary cases would have to suddenly create a special exception for sexual harassment and discrimination cases, giving people accused of such offenses less due process than they would otherwise receive. This would be a major departure from existing practice for schools, like Harvard Law School. Harvard’s “Policy and Guidelines Related to Sexual Harassment,” adopted by faculty vote in April 1995, contains the following provision: “Burden of proof: Formal disciplinary sanctions shall be imposed only upon clear and convincing evidence.” The Education Department’s rule also conflicts with faculty collective bargaining agreements mandating a clear-and-convincing standard.

The Education Department’s claim that complainants have a right to demand discipline whenever the evidence ever-so-slightly favors them is at odds with the Supreme Court’s Davis decision, which spelled out when sexual harassment in the schools violates the federal civil rights statutes that OCR is charged with enforcing. (See Davis v. Monroe County Board of Education, 526 U.S. 629 (1999).)

In its Davis decision, the Supreme Court specifically rejected the argument that complainants have a right to demand particular disciplinary sanctions, much less automatically require a school to “suspend or expel” someone accused of sexual harassment, saying that there is no violation of Title IX unless school officials behave in a way that is “clearly unreasonable”:

“We stress that our conclusion here — that recipients may be liable for their deliberate indifference to known acts of peer sexual harassment — does not mean that recipients can avoid liability only by purging their schools of actionable peer harassment or that administrators must engage in particular disciplinary action. . . the dissent erroneously imagines that victims of peer harassment now have a Title IX right to make particular remedial demands . . .courts should refrain from second guessing the disciplinary decisions made by school administrators,” who “must merely respond to known peer harassment in a manner that is not clearly unreasonable.”

The Supreme Court further emphasized that to successfully sue a school district for damages, a complainant alleging sexual harassment must show that school officials were “deliberately indifferent to sexual harassment, of which they have actual knowledge.”

Applying this “deliberate indifference” standard, the Fifth Circuit Court of Appeals held that where a school district is unable to conclusively determine that harassment has occurred, it is not liable even where that conclusion was “flawed,” and led to future harassment. (See Doe v. Dallas Independent School District, 220 F.3d 380 (5th Cir. 2000).)

The Davis decision also said that a school does not have to discipline people in ways that would give rise to “statutory or constitutional” claims against it: “it would be entirely reasonable for a school to refrain from a form of disciplinary action that would expose it to constitutional or statutory claims.”

For a school to discipline people based on a mere “preponderance of the evidence” standard, as the Education Department now demands, might well violate state law if it conflicted with collective bargaining agreements or other provisions mandating a “clear-and-convincing evidence” standard.

Even in the workplace, where employers are stringently liable for mere “negligence” — not just for “deliberate indifference” — they are not automatically liable for giving the accused a clear presumption of innocence, as federal appeals courts have made clear. The Third Circuit Court of Appeals in Philadelphia held that an employer was not liable for sexual harassment, where it refused to discipline the accused because the evidence did not convincingly prove the existence of harassment, citing the absence of a corroborating witness. (See Knabe v. Boury Corporation, 114 F.3d 407 (3rd Cir. 1997).) That employer escaped liability despite requiring more than a close case for discipline, as a preponderance of evidence would mandate, since its refusal to impose discipline in the face of uncertainty was reasonable as a matter of law.

Another federal appeals court, the Fourth Circuit, has also rejected the idea that discipline is required if it is unclear whether the accused is guilty. It emphasized, “the legal standard of ‘prompt and adequate remedial action’ in no way requires an employer to dispense with fair procedures for those accused or to discharge every alleged harasser. . . ‘[A]n employer, in order to avoid liability for the discriminatory conduct of an employee, does not have to necessarily discipline or terminate the offending employee as long as the employer takes corrective action reasonably likely to prevent the offending conduct from reoccurring.’. . . And a good faith investigation of alleged harassment may satisfy the ‘prompt and adequate’ response standard, even if the investigation turns up no evidence of harassment. . . . Such an employer may avoid liability even if a jury later concludes that in fact harassment occurred.” (See Harris v. L & L Wings, 132 F.3d 978, 984 (4th Cir. 1998).)

Similarly, the Tenth Circuit Court of Appeals rejected an attempt to hold an employer (Wal-Mart) liable for harassment because it failed to discipline a harasser where it was genuinely unclear at the time it refused to discipline him whether he was guilty: “It would be unreasonable, and callous toward [the accused harasser’s] rights, for the law to require Wal-Mart to discipline [him] for events he denies, of which Wal-Mart could not find evidence.” (See Adler v. Wal-Mart, 144 F.3d 664, 678 (10th Cir. 1998).)

Thus, even in the workplace, there is no rule that the “preponderance of the evidence” standard (discipline upon a mere 50.0001% chance of guilt) is the one that always has to be applied to avoid harassment liability; indeed, it may be unreasonable to discipline a someone with no previous history of harassment where it is unclear whether he is in fact guilty.

The Education Department’s Office for Civil Rights (OCR) has elsewhere sought to evade the requirements of the Supreme Court’s Davis decision by suggesting that its “deliberate indifference” standard for liability applies only to lawsuits against schools, not OCR investigations. But even if true, that is no help to OCR.

Even if the Davis standard for collecting damages in a lawsuit is somehow different than the standard for whether a violation of Title IX is established (for administrative purposes), the Education Department would still have to show a statutory violation happened in the first place, and recognizing a presumption of innocence is not a violation, as workplace cases reveal.

In the workplace, deliberate indifference need not be shown for a violation, and the question of damages liability and the existence of a violation are one and the same. That’s because the workplace antidiscrimination statute, Title VII, is not a spending-clause statute like Title IX, but instead automatically imposes damages liability for all but certain disparate-impact claims. Nevertheless, the courts have held that the mere existence of harassment in the workplace does not lead to liability on the part of the institution in which the harassment took place: for a violation to have even occurred in the first place, the institution must have failed to take reasonable steps in response to the harassment, and giving the accused the benefit of the doubt is not unreasonable and thus is not a violation to begin with. Thus, “a good faith investigation of alleged harassment may satisfy the “prompt and adequate” response standard, even if the investigation turns up no evidence of harassment.. . .Such an employer may avoid liability even if a jury later concludes that in fact harassment occurred,” (See Harris v. L & L Wings, 132 F.3d 978, 984 (4th Cir. 1998)), and “an employer, in order to avoid liability for the discriminatory conduct of an employee, does not have to necessarily discipline or terminate the offending employee.” (See Knabe v. Boury Corp., 114 F.3d 407, 414 (3d Cir.1997).)

OCR’s own 1997 interpretive rules regarding sexual harassment in the Federal Register explicitly borrowed from Title VII workplace precedents in laying down OCR’s test for whether a Title IX violation has occurred to begin with, thus incorporating those workplace limits on what is a violation of laws against sexual harassment. (See, e.g., 62 FR 12034 (1997)).

Even if OCR’s position were not at odds with Supreme Court precedent (and thus void), which it certainly is, OCR’s new mandate is procedurally improper and not a valid administrative rule.

If OCR wishes to impose a new rule overriding college disciplinary codes and collective bargaining agreements as to the burden of proof (as it is effectively doing), it has to do so in a formal rule, after notice and comment, and explain how to justify its departure from federal appellate court rulings about what a violation of the antidiscrimination laws is, and how to reconcile its new mandate with the Davis decision. Its unexplained departure from its past rules mimicking the standard workplace test for liability renders this new legal mandate invalid under the D.C. Circuit’s Paralyzed Veterans rule, which says that longstanding agency rules cannot be changed without notice-and-comment, even when the agency is merely amending an interpretive rule, unless that rule is being amended to comply with a superseding court decision. See Paralyzed Veterans of Am. v. D.C. Arena L.P., 117 F.3d 579, 586 (D.C. Cir. 1997). (The only arguably superseding court decisions since OCR issued its harassment guidance have been those that narrowed the definition of harassment: like Davis, which made clear that harassment must be both severe and pervasive, not severe “or” pervasive as OCR claims; and the 1998 Gebser decision, which dismissed a lawsuit for failure to show “deliberate indifference”).

Remember, it’s not the harassing student or professor who is being sued under Title IX, since Title IX liability is on the part of the school, not the harassing student or professor. (See, e.g., Smith v. Metropolitan Sch. Dist., 128 F.3d 1014, 1018-19 (7th Cir.1997).) So it’s the school, and its action in response to the harassment, that has to be culpable in order to violate the statute, not just the harasser’s own conduct.

And it’s not in any way culpable for a school to give someone a presumption of innocence.


Rudyard Kipling... doesn't he make cakes? How a third of British children have an exceedingly poor knowledge of literature

More than a third of children think Rudyard Kipling makes cakes, according to damning research. The study, carried out among eight to 12-year-olds, also found that one in five thinks Phileas Fogg, the principal character in the 1873 Jules Verne novel Around the World In Eighty Days, is just the name of a snack brand.

The poll of 217 children nationwide found just 15 per cent had heard of Arthur Conan Doyle, 17 per cent knew J.M. Barrie, 19 per cent Robert Louis Stevenson and 31 per cent Lewis Carroll.

Ignorance about Kipling – the novelist and poet behind the Jungle Book, Kim and stories of imperial India – and other books, confirms fears that many children don’t count reading as their leisure activity of choice. If a new book came out, 31 per cent would read the book, but 69 per cent would prefer to see the film.

And when asked what their favoured after-school activities are, 78 per cent chose TV and 69 per cent went for games consoles. Fewer than a third of boys – 31 per cent – were likely to read a book for pleasure.

The implications of a lack of enthusiasm for reading could be devastating. A study by the OECD suggested that the UK had plummeted down international tables measuring reading, maths and science ability.

And a recent report by ChildWise found that children in Britain sit in front of a TV or computer screen for four-and-a-half hours a day. It found that children now spend an average of one hour and 50 minutes online and two hours 40 minutes in front of the television every day.

The reading research was carried out to support an initiative to print extracts from children’s books and poems on breakfast cereal boxes. The Roald Dahl Foundation has signed up to it, along with Puffin books and Asda, which commissioned the study of children’s reading.

Extracts from four of Roald Dahl's children's books, combined with interesting facts about the author and details of a creativity competition for youngsters will appear on Asda shelves nationally from today.

Francesca Dow, managing director of Penguin Children's Books, said: 'We're delighted to be supporting this imaginative campaign to inspire kids to read and fire their imaginations.

'We've selected the extracts very carefully and we're hopeful that by doing so many thousands more children will soon be hooked on books. Roald Dahl is the world's favourite children's author and the perfect choice to launch this important campaign.'

Children’s author Tamsyn Murray said: ‘There are far more tugs on kids’ time today than ever before and that means that we need to find new ways of getting kids hooked on reading and awakening their imaginations.’


Australia: An ideology-driven educational systen victimizes teachers as well as students

Teachers often not free to teach

CHRISTOPHER Bantick (Viewpoint, April 1) did a great job summarising and supporting all the false analyses and "solutions" for fixing our dreadful state of education.

He, like others on this particular bandwagon, starts with the explicit premise that the quality of the teacher determines the quality of education and doing something about "poor" teachers will therefore fix the problem.

The implied premise is that principals, parents, students, administrators, bureaucrats, theorists, lecturers, education ministers and everybody else who has any bearing on schools are blameless and helpless victims of teachers and their unions and that all would be well if a way could be found to "fix the teachers". Anybody who has ever worked in a school knows that teachers are at the mercy of just about anyone and everything. The "best" teachers can do next to nothing in a class of unco-operative students and much less when the students don't even attend.

Our failed system has for decades been propped up by spending billions of dollars that should not need spending, by endless propaganda, by bullying and belittling members of the public who question its approaches and results, by denying anything's wrong, by intimidating teachers, by government slogans and by dumping every fad, pointless innovation or ill-fated attempt to deal with system-caused problems on to teachers. The same system has for decades persecuted teachers who tried to resist mindless dictates they knew to be wrong and harmful to children's education.

If the teaching unions were anywhere near as powerful as the Davis Guggenheim thesis in the film Waiting for Superman, as cited by Bantick, makes out, they would be in a position to stop many of the things that turn capable, dedicated teachers into "failures" unrealistic, unnecessary and uncompensated-for workloads constantly being added to an already unmanageable job, lack of support (often outright hostility) from parents and employing authorities, lack of authority commensurate with their responsibilities, insolent children and stress levels that in any other field would have been the subject of a judicial inquiry years ago.

But they aren't. They cannot even protect their members from suffering the worst rates of attrition and early death of any profession.

The true causes of our problems lie in the system itself. Along with the indiscipline of vast numbers of children, its foundational ideologies have given rise to an overcrowded curriculum and a mountain of peripheral activities, an emphasis on process and method over content and achievement, the shunning of the critical fundamentals of learning and the substitution of essential drilling of basics with creativity and fun, all of which have led to an increasing dependence on time-wasting PR to make it seem the school is doing a good job.

Many brighter children have survived this type of schooling, but many more have not. For many who needed remediation, it hasn't worked and the system has never asked itself why.

Teachers can be blamed for this only to the extent that they participate in this regime of system-mandated idiocy.

This is not to deny there are under-performing teachers, or to argue that they should be protected. It is to emphasise that the problem is the system, not the teachers, and that nobody in any job can be said to be below standard if there are no standards, or if they are denied the opportunity to perform to the best of their ability.

Teaching, more than any other profession, suffers this denial of opportunity.

The most glaring flaw in Bantick's argument is that he delimits education to just teachers. But surely any attempt to remove teachers on the basis of quality must apply equally to parents, students and administrators, especially those who undermine the rightful authority of the one who has to teach.

We must never forget that the ideologies responsible for all of this also laid the foundation for the abolition of teacher authority, a social calamity that the bad-teacher thesis bypasses in its entirety.

Would-be reformers need to go back to the 1960s and look at the philosophies and ideologies that, without any consultation or mandate, were injected into our education systems and labelled "progress".


No comments: