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OCR dear colleague letter prompts big change in sexual assault hearings at UNC

Tide Shifts on Title IX
April 24, 2012

It’s common -- and healthy -- for judicial conduct boards to be tailored to the institutions where they operate. These bodies hear cases brought forward on everything from plagiarism to harassment, and for a fair verdict to be reached, it’s essential that board members understand the culture of the campus and have backing from the institution.

But it’s also crucial that the members of that body -- whoever they may be -- have the appropriate training and experience to handle such cases. And that, it appears, is where the Student Honor Court at the University of North Carolina at Chapel Hill fell short: the system there, one that’s unique among public universities and extremely rare among institutions generally, is being stripped of its authority to hear allegations of sexual assault.

“They are very well-trained in hearing academic cases or other types of conduct cases,” Melinda Manning, assistant dean of students, said of the 25-member Student Honor Court. “I think we know that it takes a lot more to hear a case of sexual assault…. Some of the students on the honor system, the leadership, really expressed to me like they felt they really were not emotionally equipped to handle these cases.”

The change, which some have sought for years, appears to be the most extensive yet in response to the “Dear Colleague” letter issued a year ago by the U.S. Education Department’s Office for Civil Rights. While that document was less a mandate to develop new procedures than it was a reminder (albeit a pointed one) of colleges’ responsibilities in handling allegations of sexual assault under Title IX of the Education Amendments of 1972, most colleges have begun to revisit their policies in its wake. The letter, issued shortly after the department made waves with multiple settlements stemming from sexual harassment cases, was part of a crackdown of sorts by the Obama administration on Title IX violations.

"Many institutions are still trying to adjust their policies and procedures to the mandates of the Dear Colleague letter," said Ada Meloy, general counsel for the American Council on Education. "I believe some have found difficulty in applying it, particularly to faculty, and are concerned about the change in the burden of proof dictated by the Dear Colleague letter." Wholesale restructurings like the one at UNC have been less common, she said.

But the change is also significant at the micro level: it marks a philosophical shift at UNC, where for more than a century, the student Honor Code states, “Carolina students have pledged not to lie, cheat or steal. Students enjoy a great deal of freedom at Carolina and have been entrusted to hold each other accountable for maintaining a just and safe community.”

Hence North Carolina’s unusual practice of letting its students hear and decide all alleged cases of conduct and academic integrity violations.

But earlier this week, the North Carolina Faculty Council voted to remove allegations of sexual assault from the court’s jurisdiction. Chancellor Holden Thorp told the Daily Tar Heel student newspaper, saying of officials at the civil rights office, “The best way to comply with them is to redo the whole thing.”

In theory, North Carolina could have complied with the OCR regulations (at least in this instance) by specially training students to hear sexual assault cases just as extensively as they’re trained to hear other academic and conduct cases, and by lowering its evidentiary standard from “beyond a reasonable doubt” to “a preponderance of evidence” (in other words, its being more likely than not that a crime was committed). Across colleges, an easing in the burden-of-proof rules has been the clearest and most dramatic shift to take hold since last April. And the shift has been largely quiet.

But the problems related to adjudicating sexual assault cases in North Carolina's Honor Court, in which students act as prosecutors, jurors and judges, went beyond that, those involved in the process say.

“The original thinking was, since our student honor system is handling these other kinds of cases, then they should also handle sexual assault,” Manning said. “It’s after going through all these cases that then we realized, maybe it wasn’t for the best.”

The events at North Carolina are similar to a handful of other substantial changes prompted by the OCR letter, in that the institution’s policies were already under scrutiny and possibly headed for the chopping block. The judicial process at Stanford University was already under review when the letter served as an impetus to ease its criminal standard of proof (which, like North Carolina’s, was “beyond a reasonable doubt”). The correspondence from OCR accelerated plans to extend the window of time for reporting sexual assault at the University of Oklahoma, and it added urgency to the findings of a University of Georgia committee whose members found their policies were not in keeping with Title IX.

North Carolina’s honor system itself dates back 130 years, but the first sexual assault hearing Manning could think of was just about 20 years ago. She and others have come to believe that the system discouraged victims from coming forward with allegations -- already a major problem regardless of the college -- by requiring victims to be judged by a roomful of peers (usually five, in a sexual assault case) rather than a more typical, smaller body mixing students with faculty members and administrators (the specific composition depends on the institution). Whereas most colleges hear at least a few of these cases a year, the Honor Court heard, on average, only one.

Many students said they hesitated to approach the Honor Court because of its composition. The only recourse for students who opted not to go to the court was to seek criminal  charges, which most chose not to do, Manning said. That means most perpetrators would go completely unpunished.

“We just weren’t equipped to handle these cases that had such high-level sensitivity,” said Morgan Abbott, a university senior and vice chairwoman of the undergraduate Honor Court. “It just -- it was weird. It’s one thing to hear a case of academic misconduct. When you’re hearing the most intimate details of someone’s life, and then you’re in a class with them the next semester, it’s just uncomfortable for all parties.”

But leaked stories of unfair hearings had also given the body a bad rap in many students’ minds. With the new system, which will probably still involve students in some capacity, North Carolina hopes to avoid the victim-blaming, inappropriate language and poor follow-up resources that a lack of training bred in the current system, Abbott said.

And even when the cases did make it to court, North Carolina’s high burden of proof made it difficult to render a guilty verdict.

“The entire purpose of our system is to educate, not to punish, and the system that we had before the Dear Colleague letter punished all people involved, regardless of the outcome of the hearing,” Abbott said. “[The letter] was just the final affirmation we needed to move these conversations forward.”

Officials hope to have a new system in place by Aug. 1. For now, cases of sexual misconduct, harassment or intimidation, and discrimination are subject to review and investigation by the dean of students’ office, “and may be referred to the applicable Student Attorney General (who manages the Honor Court) for consideration of formal charges.”

Daniel Swinton, assistant dean and director of student conduct and academic integrity at Vanderbilt University, sees nothing inherently wrong with having students handle these cases. But Swinton, who is also a past president of the Association for Student Conduct Administration, acknowledged the logistical difficulties of training such a large group.

It’s part of why Swinton believes North Carolina’s decision is a sign of things to come for other college “quasi-judicial bodies.”

“We have this impression, in this country in particular, that the court system, the judicial system, is the epitome of fairness,” Swinton said. “How often does a student sexual misconduct case actually go to court? It’s very, very rare. We shouldn’t be trying to mimic the courts, we should be trying to look at it as, ‘O.K., what can we do ... to ensure a process is fair and equitable and impartial?’ Different schools will land at different places, and that’s OK.”

But Swinton is troubled by one thing: the disparity in evidentiary standards that will be created with a new body. For example, under the current proposal, a student cited for fighting or another physical altercation would be tried by the Honor Court. But what if gender factors into the fight in question? Why should the accusing student in that situation be subject to a higher burden of proof than one in a sexual assault?

“They’re creating higher protections for the accused student in non-sexual-harassment-based cases,” Swinton said. “That looks like all you’re doing is complying with the guidance of OCR rather than thinking through this in the macro aspect, and the impact that differential evidentiary standards will have on students coming forward.”

 

 

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