School found in violation of Title IX for using 'common sense' to investigate accusations
Yet another university has been found in violation of Title IX, and this one's a doozy.
Frostburg State University in Maryland was found in violation of Title IX after two students filed complaints with the Education Department's Office for Civil Rights. The school found several things wrong with Frostburg's investigation process, but one of the most notable findings was that using "common sense" and "reason" are considered violations of Title IX, the anti sex-discrimination statute that is used to force schools to adjudicate felony sexual assault.
In its findings letter to Frostburg, OCR quoted the school's "Sexual Harassment Policy" as "inappropriately" stating: "…in assessing whether a particular act constitutes sexual harassment forbidden under this policy, the rules of common sense and reason shall prevail. The standard shall be the perspective of a reasonable person within the campus community."
This standard, OCR wrote, "falls short of the preponderance of the evidence standard required to satisfy Title IX."
Excuse me, what? "Common sense" and a "reasonable person" violate Title IX? Well, that sounds about right given the pressure put on schools to find accused students responsible, regardless of the evidence. OCR makes no attempt to explain why common sense and reason violate Title IX, but I guess explaining such would require common sense and reason, and then OCR would be in violation of Title IX.
The Supreme Court used the reasonable person standard in Harris v. Forklift Systems, and the 11th Circuit determined the standard to be valid in Watkins v. Bowden. But for OCR, it's a violation of Title IX.
OCR's report also found some potentially significant issues at Frostburg, but its judgment is brought into question after this ridiculous dismissal of common sense and reason. OCR claimed the school's mandatory reporters didn't report an incident of alleged sexual harassment, but noted that one of the mandatory reporters said he didn't do so because the accuser's father asked him not to.
"OCR notes that while a complainant's request for confidentiality is a factor a recipient should consider, a university must take action to address incidents upon receiving notice of them, including but not limited to whether honoring a request for confidentiality is appropriate under the circumstances presented," the report said.
But finding the school in violation of Title IX for not honoring that confidentiality shows how OCR views the situation. The request was not merely a "factor" to be considered, it should not be considered at all.
Problems like this exist in many OCR findings. While many victims' advocates and politicians suggest letting accusers determine the extent to which their claims are investigated, OCR faulted Michigan State University and the University of Virginia for failing to go against the wishes of the accusers and investigate informal complaints.
It doesn't matter, though, schools like Frostburg are so afraid of losing federal funding that they will accept OCR's letter and alter their policies — which usually result in more accused students getting expelled with little to no evidence. Frostburg has already adopted OCR's recommendations and will reinvestigate years worth of accusations, because double jeopardy isn't a thing on college campuses.