During the Obama Administration, the Department of Education’s Office for Civil Rights warned colleges and universities that, if they did not take further measures to prevent and remedy sexual violence among students, they could lose their federal funding. In a “Dear Colleague” letter sent in 2011 to more than seven thousand schools, the O.C.R. provided guidance on how to avoid such a punishment. Although the letter was not legally binding, and contained few very clear instructions, the agency posted a shame list of schools that were under investigation for noncompliance with Title IX, the law, passed in 1972, that prohibits sex discrimination at federally funded institutions. At a gathering of college administrators at Dartmouth, in 2014, the assistant secretary for civil rights, Catherine Lhamon, said, “Do not think it’s an empty threat.”
Universities reacted with panicked overcompliance: in renewing their attention to the rights of alleged victims of sexual assault, many began to disregard the rights of accused students. In recent years, it has become commonplace to deny accused students access to the complaint, the evidence, the identities of witnesses, or the investigative report, and to forbid them from questioning complainants or witnesses. At many schools, including Middlebury College and the University of Pennsylvania, investigators and adjudicators have been trained to “start by believing” the complainant rather than to start from a position of neutrality. According to K. C. Johnson, a professor at Brooklyn College and an expert on Title IX lawsuits, more than four hundred students accused of sexual misconduct since 2011 have sued their schools under federal or state laws—in many cases, for sex discrimination under Title IX. While many of the lawsuits are still ongoing, nearly half of the students who have sued have won favorable court rulings or have settled with the schools.
From the start, the Trump Administration seized on Title IX as an area in which to reverse the Obama Administration’s positions. Under Betsy DeVos, the Department of Education has rescinded more than twenty Obama-era policy guidelines on anti-discrimination laws, including ones that protected transgender students from discrimination and allowed them to use gender-segregated facilities of their choice. It has also cancelled policies that supported schools’ use of affirmative action, outlined disabled students’ rights, and attempted to curb racial disparities in elementary and secondary schools, based on research showing that minority students are punished for misconduct at higher rates than their behavior warrants. These revocations have rightly provoked concern that DeVos is turning her back on vulnerable students.
In November, DeVos officially unveiled her proposed Title IX regulations on sexual harassment (which includes sexual assault.) This is an area in which there is a much stronger case for making clarifications and changes, and, on the whole, DeVos’s proposals push schools to put the rights of the accused on par with the rights of the complainant. They feature some notable reversals, such as requiring schools to allow cross-examination, which was discouraged by the Obama Administration. The response from liberals has ranged from skepticism to denunciation. It’s On Us, the sexual-assault advocacy group founded by President Obama and Joe Biden, released a video, in December, in which the actress Alyssa Milano compared DeVos to the Grinch and gave instructions on how to “return this supremely shitty gift.” The pro-choice lobbying group NARAL has called the regulations “horrifying.” The A.C.L.U. stated on Twitter that the regulations would inappropriately favor the accused and “make schools less safe for survivors of sexual assault and harassment.” (The A.C.L.U.’s statement is perhaps the starkest example of its recent shift away from defending the rights of reviled, accused people.)
The truth is that there is much to criticize in DeVos’s proposal but also much that would help to make schools’ processes for handling sexual misconduct fairer to all parties. Schools would now be required to employ a presumption of innocence, explain the specific allegations to both the complaining and accused parties, and give both parties access to all the evidence directly related to the allegations. The new regulations make clear that favoring or disfavoring either party would make a school vulnerable to a finding of discrimination on the basis of sex.
DeVos also proposes to give each school the choice of using the “preponderance of evidence” standard, which was mandatory under the Obama Administration, or the higher “clear and convincing evidence” standard. Whichever standard a school chooses, it must adopt the same one for non-sexual misconduct as well. The argument in favor of using preponderance (meaning, more than fifty per cent) in Title IX-related cases is that any higher standard is tilted in favor of the accused and therefore inconsistent with equality. On the other hand, the higher standard may appropriately reflect the possible seriousness of the sanction of the accused. In any event, DeVos is right that there’s no good justification for using different evidentiary standards for sexual harassment and, say, racial harassment, though schools would prefer to retain the flexibility to do so. In response to the rule change, it seems likely that most schools will implement the preponderance standard for both sexual and non-sexual cases, in order to avoid the public-relations cost of levelling up rather than down.
There’s also a sensible new requirement that, before schools make judgments on someone’s responsibility for sexual misconduct, they hold a live hearing. Currently, many schools dispense with a hearing. This is especially common among schools that use what is known as an “investigator-only” model, in which the investigator is also the adjudicator. While the investigator-only model is economical for schools and helps make the process less formal, it can block the complainant and the accused from knowing and contesting the evidence and any interpretations or bias that the investigator may be developing. The new regulations would require that the person who investigates the facts be different from the person who makes the decision and that the parties have the opportunity to be heard and to hear each other in front of the decision-maker.
Among the most controversial of DeVos’s proposals is that the hearings allow for cross-examination. Because sexual-misconduct cases often involve individuals’ diverging stories of what happened, asking the parties and witnesses to answer questions in real time is crucial to gauging their credibility and to getting at the truth. Several courts have therefore held that cross-examination is required in campus-discipline cases. DeVos follows those courts but attempts to soften the potential for emotional confrontation. Videoconferencing is allowed, and parties are prohibited from conducting the cross-examination themselves—that role is given to the parties’ “advisers,” who may well be their attorneys. While it’s essential for each party to be allowed to put questions to the other party, adversarial cross-examination is perhaps not the best way to do so in the context of a school’s disciplinary process, which is not a court. The goals of probing credibility and seeking the truth might be sufficiently served by allowing the neutral decision-maker to pose both parties’ questions to each other in a reasonable and non-harassing way. (This method has been implemented at Harvard Law School, where I teach.)
The most objectionable changes seem the most technical, but the harm could be profound. One is a new definition for what constitutes a “hostile environment.” The standard legal formula, from the Supreme Court case of Meritor Savings Bank v. Vinson, from 1986, defines it as unwelcome “conduct of a sexual nature” that is “sufficiently severe or pervasive to alter the conditions” of the opportunity at stake. DeVos would replace “severe or pervasive” with “severe, pervasive, and objectively offensive.” But a rape could be severe but not pervasive. And a compliment of one’s appearance isn’t necessarily severe or objectively offensive but may be pervasive, if repeated enough times, and certainly could create a hostile environment. DeVos is responding to the valid concern that increasingly expansive definitions of sexual harassment can easily lead to absurd and unfair results. But her attempt to establish a narrow definition overshoots the mark, if the goal is to insure access to education free of sexual harassment.
DeVos’s rule would also relieve schools of the obligation to respond to allegations of sexual misconduct that occur outside of their educational programs or activities. That may sound reasonable, but it becomes untenable when many students live or interact off campus, at, say, a fraternity house that is independent of the school. Worst of all, the new regulations say that schools are in violation of Title IX only if they know of sexual-misconduct allegations and are deliberately indifferent to them—an exceedingly low expectation that appears designed to allow schools off the hook. It should be enough to show that a school reacted unreasonably—that it should have known of a substantial risk of sexual misconduct and acted to address it. DeVos’s proposed rule would instead excuse everything short of deliberate indifference.
Unlike the Obama-era guidance, DeVos’s rules are going through a legal process to make them binding law, which would also render them relatively difficult to undo once adopted. When DeVos released her “notice of proposed rulemaking,” in late November, it kicked off a two-month period in which members of the public could submit comments to the Department of Education. The agency received no shortage of comments—more than a hundred thousand by the close of the comment period, on Wednesday night. (Several colleagues and I submitted our own critique of the regulations.) Perhaps the comments will result in some amendments to the final regulations, or maybe DeVos will simply provide reasons for retaining her proposals. This process could take years—and it’s all but guaranteed that the moment the final rules are issued, the agency will be sued over them. This Administration could easily end before new rules require schools to undertake major restructuring of their Title IX processes, for better and for worse. In the meantime, one hopes that the fair-process message will stick.
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