An ATIXA Tip of the Week by Brett A. Sokolow, J.D.
More and more schools are publishing Title IX annual reports (a great idea!), and as I was looking at a bunch of them recently, I saw an outlier that prompted this Tip of the Week.
As you can see from the graphic below, this school had 18 complaints in 2020-2021 that resulted in 10 findings of violation of policy. Assuming there were no diversions of those 18 complaints to informal resolution (and assuming these were all complaints that fall within the Title IX offense definitions), this school has a ratio of 18/10. Thus, it found respondents in violation of policy 55.5% of the time, which is the opposite of what I would have expected. I was also surprised to see that its ratio changed only 1% from 2019-2020, going up by 1% in 2020-2021, which also strikes me as counter-intuitive, given the Title IX regulatory change that should have impacted outcomes starting on August 14, 2020.
The Trump administration wrote the 2020 Title IX regulations with the problem of what they perceived as “low-quality” complaints in mind, and with the expectation that those complaints would be weeded out more readily as required by the 2020 regulations. I think “low-quality” complaints can have several meanings, but usually encompasses complaints that are not made in good faith, complaints that allege misconduct that, even if true, would not violate policy, and complaints that are based on misunderstandings of various kinds (usually policy-based). Low-quality in practice means the complaints are highly unlikely to be proven to violate Title IX policies. Nearly four years later, the issue of such low-quality complaints still exists, but it has improved substantially since the 2020 regulations went into effect.
For the record, I encourage anyone who has experienced unwelcome sex-based or sexual conduct to bring their concern to the Title IX office for consideration. The issue, however, is what we in Title IX offices do with the complaints that come to us. Pre-2020, the field pushed too many complaints through the full Title IX process that did not warrant it. We fell short on vetting and routing complaints appropriately. I don’t blame complainants for bringing forward complaints that don’t meet the policy violation threshold, for the most part, because they generally have no way of knowing how their complaint will be evaluated by a Title IX office when they make it. They bear the onus of making the complaint, but the school bears the onus of vetting it to determine whether it is of sufficient substance to proceed through the resolution process or must be dismissed.
The 2020 regulations are technical. That means that many complaints that would have resulted in findings of responsibility/violation before 2020 no longer would. I am therefore curious about any school whose ratio of findings shows policy violations outnumbering findings of no violation. I am not saying these ratios are impossible, just that they should be anomalous, and are worth some inspection and introspection. Most likely, I suspect, they reflect complainant-favoring biases in the resolution process. There are three reasons why there should be fewer findings of violation today than before the 2020 regulations took effect (please note that I am not making a value judgment that this is a positive or negative change, I am just describing what the logical effect of the regulations should be):
- The definitions are more technical than previous definitions, and generally set a higher or more difficult bar to prove policy has been violated. For example, sexual harassment under Title IX requires that the conduct be severe and pervasive and objectively offensive. Or fondling, which did not exist as an offense previously, requires that the conduct be for the purpose of sexual gratification (which is often misunderstood in practice and misapplied to create an even higher bar than intended, because it only means the conduct must be intentional, not that someone gets a sexual thrill from it).
- There is a presumption of innocence now that, for many institutions, didn’t exist before. This means that every respondent starts the process with a 50.01% (51%) advantage that is theirs to lose.
- Incapacitation complaints fail to prove out at rates much higher than all other offenses, because a complainant is often unable to remember what happened, and thus cannot provide probative evidence that would support an incapacity finding (note this is not a direct effect of the regulations, but a result of the fact that more institutions adopted incapacity definitions because the regulations required them to define consent, which the regulations had not done previously, though some institutions moved in this direction as early as 2011 when the OCR published the Dear Colleague Letter).
For these three reasons, we should expect more complaints (depending on the type of complaints being made) to fail to meet the preponderance standard today than they did before 2020. A number of logical reasons could explain anomalous data. As a Title IX coordinator, I would want to be assured that I understand and can explain that anomaly, if it exists in my data.
All schools should be tracking their complaint ratios each year and tracing the trends over time. Most schools should have seen some drop in the number of findings that respondents violated policy after August 2020, though it might have been 2021 before that effect was felt (and the pandemic may have had an effect there as well). That effect should be fairly consistent from then until the present. If the ratio of violation findings went up, not down, that should provoke you to seek an explanation.
Today, I would generally expect a ratio of 60/40 to be common, where 60% of complaints are not sustained and 40% are. 55/45 or even 50/50 would not be outside what I would expect, especially if a school has a year with relatively few incapacity complaints or is a type of school where incapacity complaints are less common (non-residential community colleges, K-12 schools, etc.). Schools with consistent ratios where more than 50% of complaints are proven should be outliers. There are a number of causes for an outlier ratio, but two of the most likely are either because the prove-ability of complaints is stronger than the norm or, more likely, because there is biased decision-making. The first reason is understandable; the second is highly problematic. The ratio discussion may not apply in the same way to schools with only a handful of complaints in a given year, or to schools that have had unicorn events related to Title IX, such as scandals, controversies, or a lot of publicity. Those can skew ratios or sample sizes. However, the principles I am emphasizing in this blog are significant regardless of caseload.
Ideally, if the regulations had been written to create a level playing field, schools should be at a ratio of around 50/50 (+/-). Such a ratio shows the kind of balance and impartiality Title IX should exemplify. I anticipate that the coming 2024 regulations will result in more balanced ratios, given the change in the sexual harassment definition that is proposed and the softening of complaint dismissal requirements. But, until then, 60/40 is the norm for most of our clients.
That ratio is not indicative of intentional anti-complainant bias, but of how the resolution process has been designed under the 2020 regulations, which is to provide a subtle advantage to respondents. I’m not defending that or suggesting that is how it should be (ATIXA’s previously written comments to OCR on the pending regulations suggest a number of ways to reassert balance in the complaint resolution process), just recognizing that as many schools publish data, it will raise eyebrows amongst school leaders or students to see consistent ratios that appear to favor respondents. Rather than demonstrating unfairly biased decision-making by schools, 60/40 (+/-) is, generally, the expected baseline now, given a process in which pro-respondent bias is baked in or by design.
So, I hope the discussion here has you concerned with biased decision-makers and interested in studying your ratios. We often have clients who come to us with a 60/40 ratio and feel guilty, thinking they’re doing something wrong. But, if you’re around 60/40, you’re aligned with expectations and don’t need to feel guilty about anything your institution is doing or not doing. You can feel bad globally that processes are not more even-handed, but the regulations and their effects are not your doing and not your fault. However, if you are skewing higher in terms of upholding complaints, you may need to address that, remedially. No matter what schools and regulatory agencies do, this problem seems to persist. Identifying highly analytical decision-makers can help. More and better training of those decision-makers can help. But, if they are operating in a vacuum, they have no way to sense or adjust their own pro-complainant biases. Talk with them about these ratios. Similarly, if your ratio favors respondents at more than 60%, that could be worth a bias conversation as well, though some years are just outliers for reasons that are not based on bias, but on the nature of the complaints we receive, which we cannot control. Discuss the arguments in this blog with your decision-makers, whether you agree with them, and whether there are ways to offset the effects of a suspiciously high pro-complainant or pro-respondent ratio.
If you don’t find an internal solution, you might want to consider engaging the experts of The FAIR Center as decision-makers, to help you mitigate any bias in your process by using our impartial and objective resources.