Since April 2011, when the Obama administration used Title IX to create accuser-friendly procedures in campus sexual-assault adjudications, colleges and universities have been on the losing end of 117 state and federal court decisions in lawsuits filed by accused students. That body of law forms the spine of the proposed Title IX regulations made public Friday by Education Secretary Betsy DeVos.
Fairness and balance form the proposed rules’ twin themes. An “equitable grievance procedure,” according to DeVos’s proposed regulations, “seriously considers any contrary arguments or evidence the respondent might have,” through procedures that provide the accused student with “specific due process protections.”
At first blush, such cautions might seem unneeded, since of course colleges and universities would want to adjudicate sexual-misconduct allegations fairly. After all, as U.S. District Judge Matthew Brann noted in a ruling against Penn State, universities should have an interest in “securing accurate resolutions of student complaints.” In reality, amid the Obama administration’s threat to withhold federal funds, pressure from campus and faculty accusers’-rights activists, and a belief that one-sided procedures were necessary to encourage more reporting of sexual-assault allegations, schools have gone beyond even the Obama administration’s demands. (Nearly all universities, for instance, currently forbid an accused student’s lawyer or advocate from speaking during the hearing, even though federal guidance was silent on this question.)
As a result, the proposed regulations would dramatically change how universities adjudicate sexual-misconduct complaints. The proposed changes largely reflect the findings of the two dozen university setbacks in lawsuits involving due-process complaints. Universities would have to share all evidence compiled in the investigation with all parties; divulge the contents of training materials given to Title IX adjudicators; and consider exculpatory evidence, not just the narrative presented by the accuser. In the most significant procedural change, schools would need to abandon the increasingly common single-investigator model, in which no hearing occurs. Nor could they, as many schools currently do, offer hearings in which all questions are presented through the hearing panel, which can refuse to ask them or change them in meaningful ways. Instead, colleges would need to provide a live hearing, in which an attorney or advocate for the accused student could ask questions of witnesses. In short, a system with (at best) limited, indirect cross-examination would be replaced by a system in which real cross-examination occurs.
This change reflects a fundamentally different approach to the Title IX adjudication process—from one designed to accommodate the accuser’s needs to one focused on discerning the truth of the allegations. As U.S. District Judge F. Dennis Saylor explained last year, the “basic premise” of those defending the Obama-era policies “is that cross-examination can be intimidating, or even traumatic, for a victim; but of course that presupposes that the witness is telling the truth . . . [U]ntil human beings become substantially more perfect, cross-examination will be necessary to ascertain the truth. Indeed, if justice cannot be achieved without a means to establish the truth, justice cannot be achieved without the right to cross-examination.”
While courts have grown increasingly skeptical about these unfair procedures, they have been more divided over another key area of debate: whether procedures structurally unfair to accused students can constitute gender discrimination under Title IX. An influential 2015 decision involving a Miami University student held that “demonstrating that a university official is biased in favor of the alleged victims of sexual assault claims, and against the alleged perpetrators, is not the equivalent of demonstrating bias against male students.” Several decisions in 2018, though, have suggested otherwise. On this point, the proposed regulations are clear: a university can violate Title IX if it “does not investigate and adjudicate using fair procedures before imposing discipline.”
For the most part, groups that advocate on behalf of campus accusers have avoided debating the procedural specifics (it’s hard to say publicly that accused students shouldn’t be entitled to evidence) or have asserted (implausibly) that Obama-era guidance provided sufficient levels of due process. They complain that the new regulations adopt the Supreme Court’s definition of sexual harassment, rather than the more expansive one that the Obama administration used, and that they require schools to adjudicate only those sexual-misconduct cases that occur in a university “program or activity,” even though assaults between students occur in many other contexts.
But nothing in the regulations precludes schools from maintaining the Obama-era approach to such matters, and doubtless most institutions will come under enormous internal pressure to do so. More important, the new regulations closely track the language of either the Title IX statute itself or Supreme Court precedent interpreting the statute. If these basic, definitional items need updating, then Congress should do the work—not the Education Department.
Beyond fairness and balance, the proposed regulations feature unusual specificity and detail—to an extent that might seem surprising from a conservative administration. (Defenders of the status quo have criticized the administration on precisely these grounds.) This specificity reflects the reality of the last seven years, during which universities have been almost entirely unwilling to create fairer procedures, even when courts pressure them to do so.
To take the most spectacular example: in September 2017, the Sixth Circuit (which includes Michigan, Ohio, Kentucky, and Tennessee) issued a decision requiring schools to adjudicate sexual-assault cases with a hearing and some form of cross-examination. Yet, as recently as this summer, 19 public universities in the circuit—including Michigan, Michigan State, and Louisville—had refused to follow the ruling. As Judge Julia Smith Gibbons, exasperated, informed the University of Michigan’s lawyer: “I can’t get past the university’s indifference, defiance, or whatever you want to call it, to our Circuit precedent and to the basic principles of due process.”
That record of defiance requires a level of regulatory precision that in other contexts might be unnecessary. Ironically, universities’ own intransigence has set the stage for adoption of regulations that will ensure a fairer system nationwide.
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