Lawyer criticizes revisions to sexual assault regulations

In the wake of two series of changes made to its sexual misconduct policies in September, the University administration has asserted that its procedures are fully in line with the protocols enumerated in Title IX. However, adjunct professor at New England Law School and Title IX advocate Wendy Murphy — the lawyer who filed a complaint against Princeton last April — claims the school still has a long way to go.

A provision of the 1972 Educational Amendments, Title IX prohibits discrimination or exclusion on the basis of sex in educational institutions, such as the University, which receive federal funding. In response to Murphy’s complaint, the U.S. Department of Education’s Office of Civil Rights is currently investigating the University for alleged Title IX violations regarding its promptness in resolving discrimination cases and the burden of proof the University requires from those involved.

“If these matters are not investigated and resolved promptly, the harm to the victim is exacerbated,” Murphy said. She suggested that the University and many other schools across the country engage in a ‘running out the clock’ practice, in which the resolution is delayed until the eve of graduation.

In an unrelated incident, OCR sent out a ‘Dear Colleague Letter’ to all federally funded colleges and universities — including the University — clarifying OCR’s current interpretation of federal law and providing institutions with guidance on how to ensure that they are in compliance.

At the Council on the Princeton University Community meeting held on Sept. 26, Provost Christopher Eisgruber ’83 announced that it was this letter that prompted him to appoint a working group, co-chaired by Vice President for Campus Life Cynthia Cherrey and General Council Peter McDonough, to review Princeton’s sexual misconduct policies.

McDonough declined to comment for this article, noting that he is not involved with policy changes. University spokesperson Martin Mbugua did not respond to repeated requests for comment.

The changes that the working group proposed, which the CPUC later approved, altered the definitions in “Rights, Rules, Responsibilities” of various forms of sexual misconduct to make them more specific. Additionally, Eisgruber told the ‘Prince’ that the faculty had approved a more extensive series of changes about a week earlier based on the recommendations of two older working groups: the Sexual Misconduct Working Group and the SHARE task force.

“These reforms were guided by this University’s educational values, the requirements of Title IX, and the OCR advisory letter issued last spring,” Eisgruber said in an email. “I believe that the new procedures are fully compliant with Title IX.”

The changes include creating a single, integrated process for undergraduate and graduate students, creating an appellate body, and adding two professors and five graduate students to the Committee on Discipline. Previously, there were four professors and no graduate students on the committee. The number of undergraduates remains unchanged at five.

According to the rationale laid out in the University’s explanation of the new processes, these changes were intended to “simplify and expedite the process.” While the document does not specify the time period in which the University expects to resolve cases, Princeton’s Title IX Grievance Procedures state that the Title IX coordinator will seek to resolve grievances within 45 working days.

Murphy agreed that 45 days was indeed prompt, but noted that there are a number of loopholes that Princeton and other schools utilize to get around the restriction. According to Murphy, one such loophole that causes significant harm to victims is the abuse and prolonging of the appellate process.

“It’s simply fraudulent to say that the matter will be resolved in 45 days if the appeals process itself is not part of the 45-day calculation of time,” Murphy said. “Not to have the entire thing resolved within 45 days is, in my opinion, not only per se not prompt, but it’s going to invite activists like myself to file new charges.”

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The University’s processes for student behavioral infractions indicate that the perpetrator has the right to appeal his or her sentence on the grounds of “procedural unfairness, severity of penalty, or new information.” But because the appeal occurs after the initial resolution, it is not included within the 45-day time limit — and this allows the school to drag out proceedings, according to Murphy.

“This is a matter of subtle duplicity in many schools,” Murphy said. “They manage to drag out the final resolution often until the eve of graduation. That makes OCR oversight meaningless.”

In addition to the alleged lack of promptness, Murphy’s lawsuit also claims that the burden of proof the University requires to prove guilt in sexual misconduct cases is too high, and is thus a violation of federal civil rights law. According to the updated processes, the University will continue to use the “clear and persuasive” standard of evidence when deciding these cases.

But Murphy called this standard “erroneous and onerous,” and added that OCR will not tolerate schools continuing to uphold it. OCR explicitly requires schools to use the “preponderance of evidence” standard instead, which maintains that if more than half of the evidence presented indicates guilt, the disciplinary body will find the accused party guilty.

Murphy added that over 80% of schools in the country — including the University of Virginia, against whom she also filed a complaint — have already adopted this lower burden of proof. However, OCR’s recommendations do not have the force of law, and Congress has not yet mandated that schools use the “preponderance of evidence” standard.

“Certain arrogant schools are continuing to apply the higher standard on the grounds that only Congress has the authority to mandate something different,” Murphy said. “They have to stop saying, ‘We believe her, but not enough that we’ll punish him.’ ”

On Apr. 19, McDonough told the ‘Prince’ that there was no judicial or legislative authority on the federal or state level that required the University to lower its burden of proof.

The complaint came as a result of a case that occurred at the end of the 2009-10 school year. According to Eisgruber, Princeton was compliant with federal law back then just as it is now.

“Our previous procedures were compliant with Title IX, but our new procedures include improvements that will make it easier for us to demonstrate compliance,” he said.