On Jan. 20, Yale Law School Associate Dean of Student Affairs Kathleen Overly sent the entire law school community a copy of the school’s code of conduct and grievance procedures for handling alleged violations. The procedures, which are sent out at the beginning of every semester, include how the law school handles formal complaints of sexual misconduct that are brought to its attention.
Those procedures differ from the rest of the University. In fact, the law school is the only school within the University that retains its own internal disciplinary body for hearing such complaints.
When the University-Wide Committee on Sexual Misconduct was established in 2011, each school at Yale was given the option of keeping its own complaint process or transferring the authority for hearing such cases to the UWC, said philosophy professor Michael Della Rocca, who served as chair of the UWC at its founding. Only the law school chose to keep its own disciplinary board, Della Rocca said, meaning that law students who choose to file a formal complaint of sexual misconduct may do so either with the UWC or through the law school’s process.
The latter is a process that aligns with the law school’s “history of self-government” as outlined in the institution’s “Rights and Duties of Members of the Yale Law School.” It is also a process that is seldom utilized and whose policies are not readily available to the public.
It differs from the official UWC procedure in several ways. A three-person Complaint Committee considers charges reported to it, and if it finds grounds to proceed with the investigation, refers the charges and findings to the law school dean. The dean first seeks an informal settlement with the respondent, but if none is reached, the complaint goes to a five-person Hearing Panel. The Hearing Panel’s decision is final, unless the respondent appeals to the dean. There is no independent fact-finder, and there is no final administrative decision maker.
AN UNEXPECTED CHOICE
In 2009, a Yale Women Faculty Forum working group published a report on sexual misconduct at Yale, advocating for the creation of a university-wide committee to adjudicate complaints. But the report’s authors did not envision that any individual school would retain its own system for hearing such complaints, said astronomy professor Priyamvada Natarajan, who served as co-chair of the working group.
“When we drafted the WFF sexual misconduct report, we were keen on having the entire University under one umbrella UWC to adjudicate complaints,” Natarajan said. “That was our vision, and we were optimistic that all the professional schools would agree to this model.”
In fact, she added, WFF members had expected that the deans of the individual schools would be eager to devolve authority to the UWC, given the complicated nature of sexual misconduct cases.
Yale Law School Director of Communications Jan Conroy said that while the school participates in and encourages students to utilize the UWC, the law school’s own disciplinary code predated the creation of the university-wide option.
“We are, after all, a law school,” Yale Law School Dean Robert Post wrote in an email to the News. “Procedures are at the core of our professional expertise. My memory is that we had our own procedures before the University procedures were put into place, and we liked them, and we kept them as an option if a complainant was inclined to use them.”
Natarajan said she understands why the law school might have been hesitant to give up its right to hear cases, as there is a distinction between the kinds of rules that the university adjudicates and the general law of the land.
“You can imagine that’s probably why the law school wanted to have its own procedures,” she said.
But under Title IX, schools that receive federal funding are required to handle cases of sexual misconduct differently than the law of the land normally would.
While sexual assault charges brought before a criminal court must be proven “beyond reasonable doubt,” a 2011 “Dear Colleague” letter from the Department of Education’s Office for Civil Rights mandated that educational institutions utilize a lower “preponderance of the evidence” standard.
The “preponderance of the evidence” standard — which is what the UWC uses in deciding cases — is also lower than the “clear and convincing evidence” standard used by the law school, which requires that evidence presented during the hearing is substantially more probable to be true than not. Preponderance of the evidence only requires that the evidence be more likely to be true than not. Both Princeton University and Harvard Law School had previously employed the “clear and convincing evidence” standard in adjudicating sexual misconduct complaints, but Title IX complaints filed at both institutions were closed last year -— in November and December, respectively -— and found them in noncompliance with the federal equity law.
“Title IX requires campuses to apply a preponderance of the evidence standard, and schools such as Princeton and Harvard Law have been found in violation for using a higher standard,” said Laura Dunn, founder of SurvJustice, a sexual violence advocacy organization. “Merely having it written in the current policy is sufficient for a Title IX complaint to be filed at this moment.”
Dunn’s comments were echoed by Wendy Murphy, an attorney who filed the initial complaint against Harvard Law School in 2010.
Various universities, Murphy said, are trying to skate by with “tolerable noncompliance standards” that will not flag the attention of the OCR. For example, she said, some institutions try to frame sexual misconduct — which Murphy said is a civil rights violation — as a violation of the disciplinary code, and thus try to treat it less seriously.
Just because the law school’s procedures for hearing sexual misconduct complaints fall under its general procedures for handling violations of the code of conduct, Murphy said, does not mean that the law school can treat sexual misconduct the same way it treats plagiarism or cheating.
“You can’t reframe that which is obviously civil rights violence and just call it a disciplinary infraction, and use what you call it — the naming and framing — as an excuse to apply generic disciplinary policies to the redress policies,” she said. “You can’t do that. OCR has very explicitly said that many times.”
In response to questions about whether or not the law school’s policies might bring it under federal investigation, Conroy said that the Law School consults with the University Title IX coordinator on every complaint to make sure its policies are properly aligned, and in some cases may even refer cases to the UWC.
“I would just say that we make sure that any formal complaint of sexual misconduct is addressed in compliance with the requirements and expectations of the federal and state agencies, including those requirements that pertain to standards of evidence,” she wrote in a Wednesday evening email to the News.
A MYSTERY BOX
A possible reason that the law school’s policies have not come under further scrutiny is that they are not often put to use. Yale Law School professor Claire Priest, who serves as the school’s Title IX coordinator, said that during her tenure as coordinator during the 2013–14 school year, there were no informal or formal complaints filed with the school’s internal body.
Conroy added that this does not mean there were or were not complaints originating at the Law School that may have been filed elsewhere — with the UWC, for instance.
The Law School’s disciplinary policies are also not publicly available. They are what Conroy called “internal only,” that is, published online only for Law School community members.
Current UWC chair David Post said he does not know much about the law school’s grievance procedures and that he does not know of any cases heard by that body.
Ten Yale Law School students interviewed said they were not sufficiently familiar with the school’s internal disciplinary process to comment on it. However, Cara McClellan LAW ’15 — who serves as the law school representative on the University Title IX board — said that the climate and structure at different schools within the University can vary, so it is important for administrators to communicate and learn from each other.
Two students who asked to remain anonymous because of the sensitive nature of the topic, said that if they were to present a complaint, they would turn to the law school’s internal system rather than to UWC, because they are more familiar with it.
One law school student and three law school faculty members serve on the UWC. The most recent Report of Complaints of Sexual Misconduct at the University, which encompasses complaints from Jan. 1 to June 30 of last year, noted seven complaints that originated from the graduate or professional schools.
Regardless of whether a complaint is heard at the law school or by the UWC, it is always eventually reported to the University Title IX office to ensure that it was addressed in accordance with all of Yale’s standards and procedures, said Deputy Provost and University Title IX Coordinator Stephanie Spangler.
Despite the law school’s decision to retain its own disciplinary body for hearing sexual misconduct, Natarajan said that she believes the University’s method of addressing complaints has overall been successful. But she added that there is no reason for one school to treat complaints differently than the rest of the University community.
“Everyone is equal in terms of having the right to be nurtured by the intellectual community at Yale,” she said. “We [at the WFF] felt that part of treating everyone equally had to do with having standards for a community. The acceptable standards of collegiality and behavior and decorum are true for everyone.”