I see a lot of confusion in the Gophers internet right now. A lot of it is focused around the Title IX investigation of the players and the punishment they are facing or the University’s apparent inability to communicate clearly on this subject. I’m hoping that by explaining the Title IX process in more detail I can help dispel some myths about the process while also offering some thoughts on why the misunderstandings about this process matter. I’m going to try to be very careful to call out what I know factually versus any opinions I have about what is going on.
This is the part where I note that I AM NOT A LAWYER. I have however received guidance from wildcat00 (who is a lawyer, though not focused on Title IX or litigation) and from the rest of the TDG team, many of whom have worked hard like me to better understand the applicable laws and policies that apply to this situation. We’re going to be talking about some really complex stuff and I will stay as high level as I can. If you feel a factual statement has been made in error or if you think a summary is incomplete, please note what you think we got wrong and why (with citations/links when possible). We want this post to help folks, not muddle the issue and we’re more than willing to admit an error if you can show us how you think we made one.
Explaining the Title IX investigation
If you’re confused about why the University initiated a Title IX investigation, aren’t sure what policies or laws guide the investigation, or are concerned about the timing of the investigation you aren’t alone. The Title IX process is not well understood by many fans and I’ve seen many misconceptions about the process make discussion of this situation even more difficult. To help with that, I worked with wildcat00 to explain what drives this process and what the University is doing.
Why does Title IX apply to this situation?
Title IX is a section federal law that is about more than just equality in sports. The areas of law that fall under the general umbrella of Title IX address gender discrimination and equality in a variety of contexts (including those related to sexual violence or harassment) at any educational institution that receives direct or indirect federal assistance.
The Department of Education and Title IX guidance
To help explain things, I’m going to quote from and summarize a guidance letter issued by the Department of Education on April 4, 2011. Before I do, let’s talk about why a letter from a cabinet department matters:
- The Department of Education is responsible for how the federal Title IX statues are interpreted. They are the ones who tell schools what they’re supposed to do based on how the law is written.
- Guidance from DoEd is critical for schools, as it sets the boundaries for what the expectations are for their responses to potential Title IX violations. University Title IX processes are supposed to be strictly based on what DoEd tells the schools about the law.
- If the University doesn’t follow the Department of Education interpretations they risk investigation and sanction from the federal government. In other words, they can be found to have broken the law. The DoEd takes these cases seriously and there have been multiple public cases of schools being called out for failing to heed the guidance in this letter.
The University was required to investigate under Title IX
Based on the guidance provided by the DoEd, this situation had to be investigated by the University under Title IX. What does that mean in practical terms?
- Unlike a criminal prosecution, Title IX procedures are not discretionary. If a school is on notice that sexual violence/harassment occurred, the school has an affirmative duty to investigate. “Notice” is explained in detail, but any of the media reports and the information the University had about the criminal investigation of players was sufficient to satisfy the standard of notice. Not investigating would have meant the University was not complying with Title IX and was breaking federal law
- The termination of a criminal investigation without arrest or conviction does not end the school's responsibility to investigate. In other words, it doesn’t matter that the players were not charged by the DA. The school was still required by law to conduct it’s own investigation.
- The suggested time for a complete investigation is 60 days from the complaint to resolution (not including any appeals). NOTE: It is not clear to anyone on staff at TDG how “hard and fast” the 60 day-period is. As far as we can tell the guidance letter does not mandate 60 days but rather provides a suggested time-frame for the school to provide a "prompt and equitable" response. OPINION: I suspect the University would attempt to hold to this standard as closely as possible to avoid being seen as non-compliant with DoEd’s guidance on the issue.
- The school can delay Title IX investigation pending the resolution of a criminal investigation, provided the investigation is promptly renewed when the police investigation is complete. NOTE: It’s not clear to us whether the DoEd would view the recommended 60 day window as having started once the DA announced that no charges would be filed (which happened on 10/3) or whether the school could pause the investigation while the temporary restraining orders against 5 of the players were being litigated. OPINION: Something tells me this is a gray area open to multiple interpretations.
How does a Title IX investigation differ from a criminal investigation/trial?
One area of common confusion I’m seeing is that people assume the standards of evidence used by a district attorney in determining whether to issue criminal charges is the same standard used in a Title IX investigation. This is not the case.
- A district attorney is going to look at the evidence from a criminal investigation using the “beyond a reasonable doubt” standard. In other words, if the DA thinks any part of the evidence is not strong enough to convince 12 jurors that there are no reasonable doubts of the guilt of the alleged perpetrators they may choose not to file charges. The “reasonable doubt” standard is a high bar to clear.
- Title IX investigations are required to assess the alleged assault/harassment using a “preponderance of evidence” standard. This is a much different standard than “beyond a reasonable doubt.” This standard of evidence means that a hearing must determine whether a complaint of sex discrimination is “more likely than not” to have occurred. While this guidance from the Department of Education has/is being litigated, as of now it is the standard the University is required to use in these cases. If a higher standard is applied the University would not be in compliance with Title IX.
- Title IX investigations regarding sexual assault at the University of Minnesota focus on the standard of “affirmative consent” vs. the “use of force” standard applied in criminal proceedings. This is another key difference. Investigating allegations of sexual assault under a “affirmative consent” standard means that the Title IX investigation is going to look at whether their was clear consent at all times and for all actions. This standard clearly calls out that consent can be revoked at any time and that the absence of consent means consent was not given. This is different from “use of force” in that consent is only one part of evaluation of whether force or coercion was applied. NOTE: Here is the U’s official definition of Affirmative Consent and Minnesota’s criminal statue about use of force.
- Title IX investigations can consider evidence that is not considered with criminal charges. Specifically, statements from people the victim or accused told about the alleged assault/harassment but who were not direct witnesses to the alleged events can be considered.
How is a Title IX investigation similar to a criminal investigation/trial?
- Both the complainant/victim and those being accused are given due process and the opportunity to present their case and evidence. The University is not allowed to operate an investigation that keeps the alleged from presenting their side of the story. Their disciplinary process specifically calls out the requirement of due process for both parties.
The Title IX investigation looks at more than just assault
It’s important to remember that this investigation is looking for incidents of harassment, including the creation of a “hostile environment”. There are multiple examples of what this means but it’s important to remember this fact when trying to understand how players who are admittedly not present for the alleged sexual conduct are being recommended for sanctions.
Punishments for violations of Title IX
We’ve established that the University was required to initiate a Title IX investigation and talked about how this process is different than a criminal investigation or trial. Now we need to look at how offences can be punished under Title IX, as it feels like this is the most contentious part of the current story.
- The school can take interim measures for the protection of the alleged victim while the investigation is pending. For example, the school can suspend the alleged perpetrator while the investigation is ongoing as a way to remedy the "hostile environment" for the alleged victim. NOTE: It does not appear to us like this step was taken. OPINION: It might be possible to view the current bowl suspensions as falling under the “interim measure” option, but the guidance letter has language (see footnote 42 on page 16) that suggests the interim measures should be used prior to the completion of the investigation so that’s probably not true.
- If the investigation leads the school to a finding that the alleged perpetrator assaulted or harassed the alleged victim, the school has to do the following:
a. Take action to eliminate the hostile environment and prevent recurrence;
b. Impose sanctions against the perpetrator; and
c. Provide remedies to the complainant.
- At the end of the investigation, Title IX requires both parties to be notified of the outcome in writing, and of recommended sanctions. The notification provided to the complainant will differ from the one provided to the accused in that the accused’s copy may have some basic information about the complainant removed.
- Suggested sanctions include:
1. Requiring no contact b/w victim and perpetrator until they both graduate;
2. Prohibiting the perpetrator from attending school for a period of time; and
3. Other sanctions that may arise under school's own disciplinary standards.
- The recommended sanctions are not final and can be appealed. Just because a University’s Title IX committee recommends a punishment does not mean that will be the final punishment approved by the wider University disciplinary boards upon an appeal.
Some sanction related steps where we’re not clear on the DoEd expectation
- Whether the “60 day” recommendation includes the expectation that sanctions will be applied if an investigation supports any of the alleged actions of assault/harassment. In other words, whether the school is expected to apply the sanctions within the 60 day window. It appears the answer is yes but we’re not entirely sure.
- Whether the current indefinite suspension of all 10 players is considered part of the Title IX sanctions or if it is an interim step applied by the University/Athletics Department. We’re just not sure if this is part of the official sanction or if it was an independent decision (similar to the suspension for violation of team rules that was applied during the criminal investigation).
What does all of this mean?
- The University had to investigate and if that investigation led to a preponderance of evidence finding against the accused players it was required to apply additional sanctions. To fail to do so would be a clear violation of Title IX on the part of the University. Without knowing the full details of the report (NOTE: those details appear to be leaking out as this post was being written) any opinions about whether the University investigation was correct to find a preponderance of evidence is besides the point. If they did they had to act under federal law.
- The University didn’t drag it’s feet or take too long. OPINION: Even if you start the 60 day clock at 10/3/16, the University’s investigation completed within what feels like a reasonable time-frame given the addition of the temporary restraining order litigation. Saying the University dragged this out on purpose or that doing so benefited the University wouldn’t make sense since the Department of Education sets a strong guideline for expediting the process and failing to do so could leave the University out of compliance.
Obviously this remains a difficult topic to discuss in the comments. We’ve tried to allow as much discussion as we can but things have taken a hard turn into personal attacks and political discussions in previous threads. We’re going to be hiding comments more frequently to combat this and will message or warn you individually as needed based on the community guidelines. Please remember we’re all fans of the same team and be good to each other out there. Thanks!