Behind the Headlines: An Insider’s Guide to Title IX and the Student Discipline Process for Campus Sexual AssaultsPosted: July 8, 2015
Recent media coverage has caused a firestorm of controversy about how colleges investigate and discipline students for sexual misconduct. Why are these matters handled internally at all instead of being reported directly to the police? Why don’t accused students receive the same due process rights they would in criminal court? And why is the “preponderance of the evidence” standard used instead of the criminal standard of proof beyond a reasonable doubt? Many argue that the process received by students accused of sexual misconduct cannot be fair without access to the due process guarantees of the criminal justice system. Done well, however, college disciplinary proceedings can result in fair and just outcomes, and provide a platform to further educate students about their rights and obligations as students and as adults.
To understand college sexual misconduct proceedings, one must understand Title IX of the Education Amendments of 1972. Title IX prohibits gender discrimination, including sexual violence, in the classroom, on the field, or in the dormitory, by any school that accepts federal funding—in other words, the vast majority of higher education institutions in the country, as well as most public, and some private, elementary and secondary schools. The Office for Civil Rights (“OCR”) of the United States Department of Education enforces Title IX and periodically issues guidelines to educational institutions. Since 2001, OCR has advised schools to conduct “adequate, reliable and impartial”; “prompt and equitable”; and “effective” investigations of sexual misconduct complaints, but left it to the schools to establish systems to meet these criteria.
Prior to 2011, schools commonly used the “clear and convincing” standard of proof for sexual misconduct proceedings, or in some cases, proof beyond a reasonable doubt. Some criticized the use of these higher standards as tipping the scales in favor of those who commit sexual misconduct because they codify an incorrect, archaic, and even misogynistic presumption that all sex is consensual unless proven otherwise. In response to such criticism, OCR issued a letter in the spring of 2011 (widely referred to as “the Dear Colleague Letter”), marking a sea change in student sexual misconduct proceedings. For the first time, OCR suggested that schools make sexual misconduct charges easier to substantiate by using the “preponderance of the evidence” standard. The “preponderance of the evidence” standard, it is said, levels the playing field and removes the presumption that all sex is consensual.
In addition to changing the recommended standard of proof, other significant aspects of the 2011 Dear Colleague letter included the requirement that anyone investigating or adjudicating college sexual misconduct matters have specific training or experience responding to reports of sexual harassment and sexual violence, and that colleges should generally complete investigations within 60 days. It also suggested that schools take interim measures to ensure the safety of the reporting student during the investigation.
In April, 2014, in conjunction with the publication of a White House Task Force report titled, “Not Alone,” OCR issued “Questions and Answers on Title IX and Sexual Violence.” The Questions and Answers mandated (in contrast to OCR’s earlier suggestions) that schools use the “preponderance of the evidence” standard, take interim measures to ensure student safety, prohibit the questioning of a complainant about sexual interactions with anyone other than the respondent, and avoid using students as adjudicators.
OCR’s Questions and Answers also required schools to permit attorneys to act as advisors, which many schools previously did not allow. However, they did not require schools to permit active participation of those attorneys in disciplinary proceedings. Most schools in fact prohibit active participation by attorneys to prevent one party from having the advantage of skilled legal counsel that the other may not have, a particular risk when the adjudicator is not a lawyer. Attorneys can still play an important role, however, by preparing clients for interviews, advising them during breaks, and ensuring they fully understand and answer the questions asked.
Additionally, the “Not Alone” report approved the increasingly popular “single investigator” model, in which a single investigator—whether an employee or outside consultant, lawyer or non-lawyer—gathers all the evidence, questions witnesses, and issues findings and conclusions. The report noted that preliminary research demonstrated that this model has “very positive results” because it “encourage[s] reporting and bolster[s] trust in the process, while at the same time safeguard[s] an alleged perpetrator’s right to notice and to be heard.” When the single investigator model is used, generally the accused receives a written notice that the college has received a report of sexual misconduct, including basic details such as the date and location of the alleged incident, and the name of the reporting party. The investigator then interviews the complainant, the respondent, and the witnesses, at mutually convenient times. The investigator asks principals and witnesses to provide names of witnesses and to produce relevant documents, and identifies additional relevant witnesses and documents. Questioning is non-adversarial, and the investigator seeks information relevant to possible defenses as well as evidence that supports the allegations. Re-interviews give a party the opportunity to respond to new information or to clarify previous statements. The investigator ultimately writes a report summarizing factual findings and applying specific provisions of the college’s sexual misconduct policy to the facts. Regardless of the model used, colleges must investigate verbal and written reports of sexual misconduct, anonymous complaints (when possible), and additional allegations discovered during the course of the investigation.
Like criminal laws, which differ among states, student discipline processes vary by college, but some notable models have emerged. Some institutions exclusively use the single-investigator model, with an administrator adopting the recommendation of the investigator. Others use a hybrid model in which a single investigator makes a recommendation to a panel of administrators (sometimes from other institutions, to ensure impartiality) who make a final decision, sometimes meeting with the investigator and the students separately. Some schools continue to hold formal hearings at which the students appear, but have instituted measures to prevent re-traumatization of the reporting student, such as placing a partition between the reporter and respondent, or having the parties in different rooms but able to participate by video feed. While the number of institutions in Massachusetts makes it difficult to say with certainty which model most schools use, the model that appears to have the most momentum is the hybrid in which the investigator gathers facts and analyzes potential policy violations, and a panel of administrators reviews the conclusions with the investigator and the students to make its final decision.
Most Massachusetts colleges prohibit a wide variety of sexual misconduct, some of which—such as sexual harassment—may not constitute a crime. Still, these prohibitions set important boundaries that will help guide students in their sexual interactions throughout their adult lives. For instance, most of these colleges use the “affirmative consent” standard, in which the initiator of a sexual act must obtain consent, whether verbal or non-verbal, for any sexual act. Under this standard, consent to one act is not necessarily consent to another, consent may be withdrawn at any time, and silence does not equal consent. Consent also plays a key role in criminal prosecutions for rape, but there are significant differences between consent in that context and in how colleges treat sexual assault.
To prove rape in Massachusetts, the Commonwealth must persuade a fact finder that the accused committed “sexual intercourse with a person…by force and against his will.” G.L. c. 265, § 22 (b). “Against his will” means the same as “without her consent.” Commonwealth v. Roosnell, 143 Mass. 32 (1886). Rather than requiring the initiator of the sexual act to ensure that he has consent before proceeding, criminal prosecutions require the Commonwealth to prove a lack of consent beyond a reasonable doubt. Since Massachusetts does not further define consent, jurors—many of whom harbour outdated beliefs about sex and gender roles—may determine for themselves whether a lack of resistance, silence, or consent to a different sexual act equals consent to the one charged. Thus, in criminal sexual assault cases, like in college discipline cases before the Dear Colleague Letter, the deck is stacked in favor of the defendant.
While they may seem counterintuitive to criminal-law practitioners, affirmative-consent policies—in which students must be certain the desire for sex is mutual—promote socially responsible and considerate sexual interactions. Most people already follow these guidelines instinctively, because such consideration is no different than the consideration we display in the countless other non-sexual social interactions we engage in every day, such as checking traffic before changing lanes, and asking permission before borrowing a friend’s car. Adding sex to the equation does not reduce our social obligations. Affirmative-consent policies also promote gender equality by dismantling the presumption of criminal cases that all sex is consensual. Finally, by helping control for potential bias of fact finders, affirmative-consent policies, along with the lower standard of proof, promote greater accountability for sexual misconduct.
That college sexual misconduct policies may result in greater accountability for a broader range of offenses than does the criminal justice system does not make those policies inherently unfair. Nor does the fact that the due process protections provided at colleges differ from those available in the criminal setting. OCR recognizes that possible expulsion from school does not warrant the same due process protections provided to those facing possible imprisonment.
In addition, although much of the conduct addressed by college policies doesn’t rise to the level of criminal prosecution, colleges and universities correctly address such socially inappropriate behavior through school disciplinary procedures. After all, students increasingly learn fundamental social skills in school. Learning to hold themselves to the higher standard of sexual behavior expected by college policies better prepares students for adult life. When students are permitted to present evidence in a private, non-adversarial setting in which investigators and adjudicators have the appropriate skills and expertise, listen carefully, and treat them respectfully, the result is a fair process in which students and the campus community can have confidence.
Djuna Perkins is the principal of DP Law, a law firm in Dedham, Massachusetts that provides fact-finding, training and representation in sexual misconduct matters for schools and employers.
Who is a woman for purposes of admission to an all-women’s college? The answer may appear self-evident: a woman is someone who is not a man. But what about a transgender woman – someone born male but who later identifies as a woman? Or a transgender man – someone born female but who later identifies as a man? Or someone expressing neither a male nor female identity? In a world where sex is assumed to be binary, distinctions are easy. But that is not our world. The transgender population has always been with us, challenging dichotomous and static views of sex and gender identity.
Today, women’s colleges are answering the question of who is a woman in revolutionary ways that are breaking down traditional perceptions of sexual identity and discrimination. Just last year, Mills College in California became the first women’s college to open its doors expressly to trans women. Following suit, several Massachusetts women’s colleges, including Mount Holyoke, Simmons, and this year, Wellesley, have revised their admissions policies to address transgender applicants, debunking myths about how discrimination laws apply to single-sex institutions and sparking a national discussion about how to define gender in a time and culture where gender expression is increasingly fluid.
Debunking the Title IX Myth
A pervasive myth in higher education goes something like this: single-sex colleges cannot admit transgender students because they would lose their exemption from Title IX, the federal statute prohibiting sex discrimination in any college program or activity receiving government financial assistance; in other words, unless colleges are exclusively single sex, they will be liable for sex discrimination under Title IX. Not so.
Title IX provides that “[n]o person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity.” 20 U.S.C. § 1681(a). However, Title IX’s ban on sex-based discrimination is not absolute. One exception applies to women’s colleges but not because of their single sex status. Rather, the exception applies because they are private, undergraduate programs. In regard to admissions, “Title IX applies only to institutions of vocational education, professional education, and graduate higher education, and to public institutions of undergraduate higher education.” 20 U.S.C. § 1681(a)(1). By its express terms, Title IX does not apply to admissions at any private, undergraduate college, regardless of whether the college is single-sex or co-ed, which means that private colleges have discretion under Title IX to deny admission to their undergraduate programs on the basis of sex. Not surprisingly, therefore, there are no reported state or federal cases in which a private college has been found in violation of Title IX for failing to admit exclusively women or men.
With respect to Massachusetts law, the legal analysis is similar. The Massachusetts Fair Educational Practices Law generally prohibits discrimination in admission, see M.G.L. Ch. 151C, § 2(a), but with respect to undergraduate degree programs, the law excludes sex from the list of prohibited considerations. See id. at § 2 (c) (prohibiting sex discrimination only in graduate programs). In 2012, Massachusetts passed the Transgender Equal Rights Bill, which broadly prohibits gender identity discrimination but exempts private college admissions. See 2011 Mass. Acts Ch. 199 (covering only public elementary and secondary schools).
Thus, with respect to undergraduate admissions, private colleges in Massachusetts are exempt from both federal and state sex discrimination laws. There are no provisions in Title IX or Massachusetts law mandating or prohibiting consideration of transgender applicants for admission. The laws do not define “male” or “female,” “man” or “woman,” nor do they provide any standards or procedures for determining someone’s “sex.” The definition and application of those terms are left to the institutions or the states.
Defining Who Is a Woman
Having opened the door to transgender applicants, women’s colleges are now experimenting with definitions of “woman” that recognize the diversity of gender expression yet remain faithful to the special environment provided by a single-sex college. No easy task. From practical and forensic standpoints, there are two threshold questions: On what basis should the college define “woman” for admissions purposes? And what proof should be required?
There are several options, but each has limitations. For example, one might choose to determine sex on a genetic basis, but there are people who have the physiology of a woman, from birth or through sex reassignment surgery, and also a Y chromosome like men. Physiology is another option, but there are hermaphroditic or “intersex” persons with the sex characteristics of both men and women, and others who lack one or more distinctive sex characteristics. Beyond the bodily aspects, being a woman can also be considered a matter of cultural or self-identification, which may evolve over time and implicitly or explicitly reject binary gender norms. Some people express their gender as something other than male or female, using such terms as “gender non-conforming,” “gender neutral,” “gender queer,” or others. Gender expression may be the most inclusive baseline for sex identification, but its inherent breadth is problematic for colleges trying to identify a specific category of gender expression: being a woman.
Intimately linked with the basis for determining sex is the measure of proof. Determining sex by reference to bodily aspects, such as genetics or physiology, requires either medical testing or a form of government identification. Medical testing is not an appealing option, given privacy concerns, expense, and administrative requirements. Deferring to the government’s determination of sex on a birth certificate, driver’s license or passport is an easier, less costly alternative but raises concerns about fairness and independence. In relying on the government’s definition of sex, women’s colleges abdicate their discretion to determine who they want to educate in their single-sex environments. Moreover, because there are different standards for different forms of government identification, applicants may not be treated equally. For example, while the U.S. permits people to change the sex stated on their passport with certain supporting medical documentation, many other countries do not. Consequently, transgender applicants from different countries might be treated differently for admissions purposes. Similarly, transgender applicants from different states may be treated differently depending on their state’s laws for changing the sex stated on a birth certificate or driver’s license. Another option would be rules requiring confirmation of sex reassignment surgery, but that standard favors wealthier families and older applicants, as sex reassignment surgery is expensive and rarely performed on adolescents.
Given these difficulties in proof, it may not be surprising that many women’s colleges have opted to rely on the applicant’s own representation as to her sex. In doing so, there is always the risk of admitting a disingenuous applicant, but that risk seems acceptably low for many colleges given that dishonesty in the application process is ordinarily a cause for dismissal.
Women’s colleges in Massachusetts have, thus far, adopted a broadly inclusive definition of the category, “women,” inclusive of transgender persons and deferring to applicants’ representations regarding sex. Mount Holyoke and Simmons Colleges, like Mills, revised their admissions policies to expressly welcome transgender applicants and rely solely on the applicant’s representation as to gender identity. Mount Holyoke “welcomes applications for our undergraduate program from any qualified student who is female or identifies as a woman.” Simmons’ policy states: “All applicants to the undergraduate program who were assigned female at birth and/or applicants who self-identify as women are eligible to apply for admission.” These colleges will admit students born female but who are gender non-conforming. The only category of applicants who are clearly ineligible are cis-males, persons born male who express themselves as male at the time of application.
Opting for a more restrictive definition, Wellesley College “will consider for admission any applicant who lives as a woman and consistently identifies as a woman.” This definition includes trans women but excludes trans men. Gender non-conforming persons may also be eligible, provided that their birth sex was female and “they feel they belong in our community of women.” Bryn Mawr’s policy is similarly open to transgender and intersex individuals, provided that they “live and identify as women at the time of application,” but the Bryn Mawr policy also includes any applicant assigned the female sex at birth, which could include transmen, provided that they have not taken “medical or legal steps to identify as male.” What is particularly remarkable about these policies is that the colleges may go beyond the admissions materials and seek additional information about an applicant’s gender identity. By contrast, Smith College, which is in the process of reviewing its transgender admissions policy, relies solely on the application materials to reflect an applicant’s identity as a woman, without investigating whether or how the applicant lives as a woman. To date, there have been no legal challenges to any of these policies.
Evolution of Legal Protection for Transgender Persons
The challenge of defining sex for admissions purposes at single-sex colleges reflects a broader national discussion about legal protection for gender identity. While there are few court decisions in this area, two national trends are discernable: (i) greater legislative protection for transgender individuals and (ii) broader interpretation of sex discrimination laws to cover discrimination based on gender identity.
With regard to legislation, the action has been at the state and local levels. So far, eighteen states and the District of Columbia have enacted laws expressly prohibiting gender identity discrimination. Over 150 municipalities have passed similar laws. At the federal level, change has been slower. The Employment Non-Discrimination Act, which would expressly prohibit gender identity discrimination in the workplace, passed the Senate in November of 2013 but has since stalled. In July 2014, President Obama issued Executive Order 13762, prohibiting federal contractors from discriminating on the basis of sexual orientation and gender identity but to date, the only federal statutory coverage expressly recognizing gender identity is the Matthew Shepard Hate Crimes Act, which passed in 2013. Federal disability discrimination laws explicitly exclude from the definition of disability “transsexualism” and “gender identity disorders” not resulting from physical impairments, see 42 U.S.C. § 12211(b)(1) and 29 U.S.C. § 705(20)(F)(i), even though the medical community recognizes a condition known as gender dysphoria, and the American Psychiatric Association has denounced discrimination against transgender and gender variant individuals.
Contrasting sharply with federal disability laws, in 2001 a Massachusetts trial court ruled that Article 114 of the Massachusetts Declaration of Rights prohibits discrimination against public school students diagnosed with gender dysphoria. See Doe v. Yunits, No. 00–1060A, 2001 WL 664947, *5 (Feb. 26, 2001) (denying motion to dismiss). The Doe decision, one of the very few reported decisions involving transgender students, is aligned with the trend towards broader enforcement of anti-discrimination laws to protect transgender persons. Federal and Massachusetts agencies are in agreement that discrimination against transgender persons constitutes prohibited sex or gender discrimination in higher education post admission, as well as in the workplace.
In a revolutionary development for single-sex institutions, private women’s colleges have begun opening admission to transgender applicants by redefining sex for purposes of undergraduate education. Their example has broadened and deepened society’s larger discussion of sexual identity — how it is defined, authenticated and protected from discrimination. Their example has also exposed gaps and tensions within federal and state anti-discrimination laws which fail to address gender identity issues expressly or consistently. Lastly, their example spotlights the national trend towards greater legislative and law enforcement recognition and protection for transgender persons.
Paul Lannon is a partner at Holland & Knight, where he Co-Chairs the national Education Law Team.
 The admissions policy for Mills College states: “Mills College admits … ‘self-identified’ women to its undergraduate programs. Mills shall not discriminate against applicants whose gender identity does not match their legally assigned sex. Students who self-identify as female are eligible to apply for undergraduate admission. This includes students who were not assigned to the female sex at birth but live and identify as women at the time of application. It also includes students who are legally assigned the female sex, but who identify as transgender or gender fluid. Students assigned to the female sex at birth who have undergone a legal change of gender to male prior to the point of application are not eligible for admission.”
 Accord Katherine Kraschel, Trans-cending Space in Women’s Only Spaces: Title IX Cannot Be the Basis for Exclusion, 35 Harvard Journal of Law and Gender 463 (2012) (concluding that Title IX does not prevent single-sex institutions from admitting transgender students). See also Stevie Tran, Embracing Our Values: Title IX, The “Single-Sex Exemption,” and Fraternities’ Inclusion of Transgender Members, 41 Hofstra L. Rev. 503 (2012) (addressing admission to fraternities).
 If Title IX is so clear about an exemption for private, undergraduate programs, from where then did the concern arise about the need to remain exclusively single sex? The myth appears rooted in the Title IX exception that permits a public institution to implement single-sex admissions policies only if it has “traditionally and continually from its establishment had a policy of admitting only students of one sex.” See 20 U.S.C. § 1681(a)(5). The “traditionally and continually” requirement does not apply to private colleges.
 The difficulty in describing and authenticating gender identity (for legal purposes) is evident in the statutory definition provided by the Massachusetts Transgender Rights Act: “[A] person’s gender-related identity, appearance or behavior, whether or not that gender-related identity, appearance or behavior is different from that traditionally associated with the person’s physiology or assigned sex at birth. Gender-related identity may be shown by providing evidence including, but not limited to, medical history, care or treatment of the gender-related identity, consistent and uniform assertion of the gender-related identity or any other evidence that the gender-related identity is sincerely held as part of a person’s core identity; provided, however, that gender-related identity shall not be asserted for any improper purpose.” See M.G.L. Ch. 4, § 7. This effort is a flexible approach to a fluid phenomenon. How it will work in practice remains to be seen.
 The most recent version of the Diagnostic and Statistical Manual of Mental Disorders (5th Ed.) (“DSM-V”), published on May 18, 2013, renamed Gender Identity Disorder as Gender Dysphoria after criticisms that the former term was stigmatizing. See Report of the APA Task Force on Treatment of Gender Identity Disorder, Am. J. Psychiatry 169:8 (Aug. 2012). The diagnosis for children was also separated from the diagnosis for adults, reflecting the purportedly lesser ability of children to have insight into what they are experiencing, or to express their experiences. Id. See also Am. Psychiatric Ass’n, Position Statement on Discrimination Against Transgender and Gender Variant Individuals 1 (2012).
 Article 114 prohibits discrimination against “qualified handicapped” individuals in all public and private entities in the Commonwealth, including private colleges, regardless of funding.
 See 20 U.S.C. § 1681(a) (exempting only admissions decisions); OCR, “Questions and Answers on Title IX and Sexual Violence” (Apr. 29, 2014), available at http://www2.ed.gov/about/offices/list/ocr/docs/qa-201404-title-ix.pdf. With regard to accommodations for transgender students at colleges and universities, see Troy J. Purdue, Trans* Issues For Colleges and Universities: Records, Housing, Restrooms, Locker Rooms, and Athletics, 41 Journal of College and University Law 45 (2015).
 See, e.g., Macy v. Department of Justice, EEOC Appeal No. 0120120821 (April 20, 2012) (recognizing sex discrimination claim under Title VII by transgender plaintiff); MCAD & Carlegne Millet v. Lutco, Inc., No. 98-BDM-3695, 2009 WL 2151780, *6, n. 2 (MCAD July 10, 2009) (recognizing sex discrimination claim under M.G.L. c. 151B by transgender plaintiff).