By: Brett A. Sokolow, J.D., Chair of the Board, TNG; President, ATIXA
Personally, perhaps you are. Legally, you are not. Neither am I. Why? The reasonable person (RP) does not exist. The reasonable person isn’t a person at all, but rather an idea. And it’s a fascinating idea, though operationalizing a fictional concept is understandably challenging. Is the RP what the law says it is or what jurors think it is? If it’s what jurors think, then what a RP does or thinks is more important than who the RP is. What does a RP do or think? According to recent studies, the RP acts or thinks as some critical mass of people would in a given situation. It need not even be the majority of people, and what is enough to constitute a critical mass will vary from juror to juror. In negligence claims, the RP is operationalized as some sort of action people take on average, or even that rather prudent people are inclined to take, even if the majority of people would not.
The RP we are accustomed to in the Title IX field is a specialized type of RP, analogous only in some ways to the RP used in negligence litigation. In discrimination cases, the RP is seen as an objective standard, to take decision-makers beyond the subjective perception of the complainant’s assertion that conduct is unwelcome and therefore unreasonable. Here, too, the average concept referenced above has some value, but Title IX and other discrimination applications look to the “reasonable person in the same or similar circumstances” as the complainant, or per the Title IX regulations, the RP sits in the shoes of the complainant, but is not the complainant. In this way, decision-makers have access to both the subjective perception of the complainant and an objective lens of what the average RP would do or think.
Where, specifically, does the RP help in Title IX complaints? We need the RP to assess whether conduct meets the sexual harassment standard of being severe, pervasive, and objectively offensive (what we call by the acronym SPOO, at ATIXA). We need it to determine if conduct effectively denies access to a federally funded education program. We need the RP to help us to determine if certain communications reasonably convey consent or the withdrawal of consent in a sexual assault allegation. We can also use the RP from the perspective of the reasonable respondent, such as when we ask what a reasonable person in the shoes of the respondent should have known regarding the complainant’s alleged incapacity. We need an objective lens when the respondent says they subjectively should not have known. We also need the RP to assess whether the conduct alleged is sufficient to cause a RP to feel fear or substantial emotional distress for stalking allegations. Since every person has their own, highly unique fear threshold, you can see why the RP needs to be an objective “average” rather than someone’s individual heightened sensitivity.
As we apply the RP concept, we should recognize that the discrimination RP diverges from the negligence RP. The negligence RP is an “average” of people, but the discrimination and Title IX RP is an average of similarly situated people in the same shoes. Thus, the negligence RP is a reasonable college student or employee. The Title IX RP is a reasonable 19-year-old female student from the Midwest, for example. What does that fictional aggregate person think or do? How do I know? I’m not that person. Neither are you. It is a mistake for any decision-maker in a Title IX process to think they know what an RP thinks or does, or to believe that their thoughts or actions can substitute for the shoes of the complainant.
Beware of the intersection of identity politics with RP analysis. In college and school environments, identities matter very much. And while they do, and should, they can’t matter quite as much to the RP analysis, lest the objective standard becomes a subjective one by becoming too granular. If the complainant is a 20-year-old non-binary person of color from Chicago who is economically underprivileged and a first-generation college student, go ahead and figure out what that person thinks and does, and you will have a control group of one person. That identity-driven perspective is too narrow to represent anything objective. Instead, remember the RP is representational, not actual. Maybe we go three identities deep to find the shoes, but not six. We don’t do a study to see what a collected “same shoes” focus group thinks or believes, though that might be helpful in many cases. As decision-makers, we somehow try to divine what that fictional person thinks or does (or as many Crits believe, we decide what we think is right and then ascribe that to what our shoed RP thinks or does).
One other lens to consider is whether the RP should have a particular sensitivity ascribed to them that should be considered. Does it matter if the complainant has been previously stalked or has experienced sexual assault or dating violence? Some decision-makers strongly believe this perspective should inform the RP construct, because those are the same shoes as those worn by the complainant. It is worth considering, as this issue is far from settled, and it is challenging to decide whether the RP standard is the right one, or whether there should be such a thing as the RVP – the reasonable victimized (or traumatized) person, whose previous experiences color the current allegation. We can’t answer that question here, but at least we can raise it for your consideration.
So, what are the key take-aways here:
- You are not a RP. Eschew the arrogance that you know or can know what the RP thinks or does based on your own common sense or reasonableness. I am a white, male, economically privileged, educated, attorney. My ability to know or appreciate the lived experience of an “average” lesbian student of color is limited, but something about which I must be curious, and must try to contextualize vis-à-vis the complaint I am hearing as a decision-maker.
- The Shoes of the Complainant Can Be Regionally Variable. I am also coastal, having only lived on the Eastern and Western seaboards of the U.S. My insights on international students are not well-informed by my lived experience (the international student RP is not in the same shoes as a U.S.-born person), and I find that my coastal perspectives are as distant from international students’ as from those of students in the Midwest. The RP in Florida may be different from the RP in California. Regional sexual and social mores vary considerably.
- Don’t Over-Apply the RP Standard. Apply the RP lens where it belongs, but not to subjective aspects of a complaint, such as unwelcomeness.
- Consider Whether Outsourcing to People Who Don’t Know Student Culture Makes Sense. Thirty-seven percent of colleges and 15% of K-12 schools now outsource Title IX decision-making (2021 ATIXA Member Survey Data). While outsourcing has its advantages, many schools are using local law firms or retired judges to serve as decision-makers. They are surely good at managing a complex hearing, but they are also more likely to think of themselves as reasonable people and subject their decisions to their own lens simply because they aren’t connected with school and college communities on a daily basis. They don’t really know what reasonable students think, do, act, believe, etc. When colleges and schools engage TNG consultants as decision-makers, it is often helpful to pair our Chair with panelists who come from the school, who may have better insights on those questions, though almost all of our consultants are former college or K12 administrators. And we work with students and institutions every day. That may not give us perfect insight on RPs, but it’s more connected than someone who serves the education sector but doesn’t regularly work within it.
- Use Witnesses as a Reasonableness Focus Group. Teach your investigators to try to include RP perspectives, when relevant, in their investigation reports. How? Use the witnesses. The friends of the parties are often like the parties, and can give us insights beyond what they witnessed, in terms of what their cohort thinks, does, acts, believes, etc. Smart decision-makers use their witnesses at the hearing to help give them insights into what similarly situated people think, not just for what they know about an incident. As decision-makers, the TNG team commonly drafts a set of questions for witnesses at the hearing that are intended to allow them to help us tease out their sense of reasonableness, based on the fact that they will understand their own context far better than any decision-maker ever will.
For more information about Title IX compliance support, please email us at firstname.lastname@example.org.