Must vs. Should

In 2011, the U.S. Department of Education issued a Dear Colleague letter that urged institutions to better investigate and adjudicate cases of campus sexual assault. The letter clarified how the department interprets Title IX of the Education Amendments of 1972, and for the past five years it has been the guiding document for colleges hoping to avoid a federal civil rights investigation into how they handle complaints of sexual violence.

Last week, the department clarified in a letter to a Republican senator that the Dear Colleague letter acts only as guidance for colleges and does not "carry the force of law." But many college presidents and lawyers argue that the department’s Office for Civil Rights treats the guidance as far more than a series of recommendations. Instead, they say, OCR uses the letter to determine which colleges are in violation of Title IX and to threaten the federal funding of those that don't follow every suggestion.

Some department officials have recently said there are clear "musts" and clear "shoulds" in the guidance, though colleges say the Office for Civil Rights does not seem to clearly differentiate between the two. Attempts to clarify which parts of the letter should be read as hard regulations and which should be considered recommendations have led only to more confusion and frustration.

“The department’s political leadership can say or write whatever they want, but where the rubber meets the road is where the Office for Civil Rights shows up to investigate cases on campus, and in those cases they consistently treat every single word of the guidance as an absolute mandate,” said Terry W. Hartle, senior vice president for government relations and public affairs at the American Council on Education. “In trying to better deal with allegations of sexual assault on campus, a lot of schools would probably try different approaches and consider different things, but a fear of vague federal mandates limits these efforts. They are hamstrung by uncertainty.”

Victims' advocates said this week that colleges’ increasing focus on which parts of the guidance should be treated as mandates and which should be considered suggestions is not based in fear, however, but rather in an attempt to deflect their responsibility in addressing campus sexual assault.

“I think the background of the argument is a desire by institutions to evade the federal scrutiny being placed on them,” said Laura Dunn, founder of SurvJustice, an advocacy group for victims of sexual assault. “The point of the guidance is to let schools know what the department will be looking at to determine regulations are being fully complied with, so treating them as guidance to abide by is wise.”

Department officials have repeatedly stated that the “guidance does not hold the force of law,” and that they view it as carrying out existing rules.

Ted Mitchell, the department’s under secretary, said as much during a Senate hearing in October. He described the guidance as “recommendations and illustrations of ways in which [the department is] interpreting the statute and regulations.” Earlier that week, during a similar exchange with Senator Lamar Alexander, the Republican who chairs the Senate’s education committee, the department’s assistant secretary for planning, evaluation and policy development, Amy McIntosh, also stated that guidance “does not have the force of law.”

At the same time, the department has found colleges and universities that do not follow the letter’s guidance to be in violation of Title IX. When entering into settlement agreements with the department, those institutions were made to change their policies to better reflect the department’s recommendations contained in the 2011 letter.

“Our guidance reflects our understanding of the civil rights laws we are charged to enforce,” Dorie Nolt, the department’s press secretary, said in a statement Tuesday. “Guidance provides further clarity for school districts and institutions of higher education as they work to ensure they are satisfying the law and that no student is being denied access to an education based on disability, race, color, national origin, sex [or] age. Each case is evaluated on its individual merits against the underlying law.”

Last week, in a letter sent to James Lankford, a Republican senator from Oklahoma who questioned the legality of the department’s guidance on Title IX, Catherine Lhamon, the department’s assistant secretary for civil rights, wrote that the “guidance is issued to advise the public of [the department's] construction of the statutes and regulations it administers and enforces.” Title IX requires colleges and universities to provide “a prompt and equitable response” to complaints of sexual harassment and sexual assault. The department’s guidance, Lhamon wrote, offers clarification about what exactly constitutes such a response.

It does not, she said, “carry the force of law.” In a meeting with college administrators about the issue last summer, Lhamon “flatly stated the opposite,” according to one college president who was present at the time.

During a conference about campus legal issues hosted by Valencia College in Florida last month, Mitchell, the under secretary, attempted to address some of the concerns surrounding the guidance. According to several attendees, Mitchell said while the letter itself is not binding, some of its individual suggestions are. In certain cases, the letter instructs colleges that they “must” do something. In those cases, he reportedly said, not following the guidance would be considered a violation. The Education Department declined repeated requests to clarify Mitchell's comments at the Valencia conference.

The 2011 Dear Colleague letter states that colleges “must use a preponderance of evidence standard” when adjudicating cases of sexual assault.

“The ‘clear and convincing’ standard (i.e., it is highly probable or reasonably certain that the sexual harassment or violence occurred), currently used by some schools, is a higher standard of proof,” the letter continues. “Grievance procedures that use this higher standard are inconsistent with the standard of proof established for violations of the civil rights laws, and are thus not equitable under Title IX. Therefore, preponderance of the evidence is the appropriate standard for investigating allegations of sexual harassment or violence.”

As preponderance of evidence is the standard already used by the U.S. Supreme Court in civil litigation involving discrimination, the department’s Office for Civil Rights argues it makes sense -- and is legally sound -- to use the standard when enforcing Title IX.

“Whether you agree with it or not, some guidance is quite clear,” said one college lawyer who was present at the Valencia meeting. “Where it says ‘must,’ the guidance is mandatory. Where it says ‘should,’ it is not mandatory. I think the concern for colleges, and especially for those who have gone through the OCR complaint review process, is OCR is not only treating the ‘musts’ as musts, but also treating the ‘shoulds’ as musts.”

The lawyer asked not to be identified, out of fear that “OCR shows up on [his] doorstep.”

The Office for Civil Rights has repeatedly found institutions in violation of Title IX for, among other lapses, not expressly stating in their sexual harassment policies that mediation must not be used to resolve complaints of sexual assault.

In recent years, the department has found that institutions such as Harvard University, Michigan State University, Tufts University and the State University of New York did not “provide for a prompt and equitable resolution of complaints of sex discrimination, as required by Title IX” by not including in their sexual misconduct policies a statement saying “that mediation of sexual assault complaints is prohibited.” All four institutions were required by the department to include such a statement in their updated policies as part of settlement agreements.

The 2011 Dear Colleague letter, however, describes including this statement as a recommendation, not a clear mandate. “In cases involving allegations of sexual assault, mediation is not appropriate even on a voluntary basis,” the guidance states. “OCR recommends that recipients clarify in their grievance procedures that mediation will not be used to resolve sexual assault complaints.”

Hartle, of ACE, said these cases point to a contradiction in how the guidance is described and enforced.

“I think the challenge that colleges and universities have is the Department of Education is saying a large number of very different things about the guidance and what it means,” he said. “If you’re an institution, you’re not entirely sure what the department’s thinking actually is.”