The long-awaited new regulations on campus sexual misconduct, expected to be fairer toward the accused than the Obama-era Title IX guidance policies they will replace, were leaked to The New York Times and appeared there in part on August 29.
Unfortunately, The Times did not post the draft guidelines, due from Education Secretary Betsy DeVos. But I thought it might be worthwhile to compare what we know of the guidelines—from published reports and from my discussions with a source who has seen the proposed regulations—with the Obama-era guidance dating from 2011.
TITLE IX OVERVIEW
Obama-era guidance: Every substantive provision of the guidance increased the likelihood that a student accused of sexual assault or sexual harassment would be found guilty. Based on the specifics of the guidance, the remarks of the President and Vice President, and the actions of OCR head Catherine Lhamon, the administration saw the law as requiring schools to adopt accuser-friendly policies, even if those policies led to unfair procedures. For example, in the document, “Questions and Answers on Title IX and Sexual Violence,” Lhamon says, “Specifically, OCR’s standards require that the conduct be evaluated from the perspective of a reasonable person in the alleged victim’s position.” That perspective led to the elimination of due process for the accused, which was replaced with Title IX Tribunals or the single-investigator process.
DeVos regulations: According to The Times, the regulations contain a clause making clear that Title IX requires fairness for both parties, and that policies or actions strongly biased against the accused could constitute gender discrimination in violation of Title IX.
Practical effect: It’s very unlikely that rhetorical pressure will prompt universities to adjudicate sexual assault allegations more fairly. But this clause—if accepted by the courts—could have a significant effect in litigation. Already, 2018 decisions in lawsuits by accused students against Marymount, Johnson & Wales, and Ole Miss have seen judges suggest that unfair policies can violate Title IX.
Obama-era guidance: Ordered all schools to train not merely investigators but adjudicators. Specifically required adjudicators to be trained in “the importance of accountability for individuals found to have committed sexual violence” and “the effects of trauma, including neurobiological change.” The small number of training materials that have been made public have featured troublingly one-sided content—such as recent training material from Ole Miss, which guided panelists to believe that an accuser lying is a sign of the accused student’s guilt.
DeVos regulations: Interim guidance (2017) required training that avoided sex stereotypes; presumably a similar clause will appear in the new regulations. The proposed regulations also require training about the regulations and the campus policies. And they order schools to divulge the contents of the training to any accused student who asks for them.
Practical effect: This provision is perhaps the most significant of any in the regulations. Training materials have been notoriously one-sided; by introducing a degree of sunlight to the process, the regulations hopefully will encourage schools to create fairer training materials. And if they don’t, the contents of one-sided training will prove useful in any subsequent lawsuits.
Obama-era guidance: Imposed no requirements on colleges to share exculpatory evidence with the accused student, nor to document any exculpatory evidence that a Title IX investigator might have uncovered.
DeVos regulations: The interim guidance said a school’s “investigation should result in a written report summarizing the relevant exculpatory and inculpatory evidence.” [emphasis added] The regulations appear to contain similar language, which would require the school to share exculpatory information.
Practical effect: The policy change is night and day. The question, as always, will be whether colleges will comply with the spirit of the regulation, which seems quite unlikely. But, again, once an accused student’s lawsuit gets to court, the university would need to explain why it ignored a federal mandate for basic fairness.
FRAMING OF POLICY
Obama-era guidance: The 2011 Dear Colleague letter included the claim that millions of female undergraduates (1 in 5) would be sexual assault victims while enrolled at school. President Obama made a similar claim. The crackdown on rights of the accused was implicitly justified on the grounds of responding to this epidemic of campus violent crime. In 2017, a close Obama ally, Washington Senator Patty Murray, justified the policies because they would increase the chances of campus victims filing a report.
DeVos regulations: It’s unclear how much (if any) of DeVos’ rhetoric will appear in the regulations. But she has repeatedly made clear that just as one rape on campus is one rape too many, so too is one innocent student denied due process.
STANDARD OF PROOF
Obama-era guidance: Demanded that all schools use a preponderance of evidence (50.01 percent) standard.
DeVos regulations: Allows schools to choose between using a preponderance and a clear-and-convincing (around 75 percent) standard. Requires schools to use a clear-and-convincing standard if they do so for other civil rights-related cases.
Practical effect: No change. DeVos’ interim guidance (September 2017) gave schools the option of creating fairer systems by using a clear-and-convincing standard. As far as I know, not a single institution in the country accepted her invitation. It’s hard to imagine any will do so now; any university president who made such a choice doubtless would be attacked as a rape apologist. It’s possible, however, that this provision could have some effect in lawsuits by accused students since universities would no longer be able to claim that OCR ordered them to use a preponderance standard. In 2018, two judges (Martinez and Jordan) have expressed concerns about the fairness of the preponderance standard in a due process claim.
Obama-era guidance: Demanded that all schools that use an appeals process (as the overwhelming majority do) also allow accusers to appeal not-guilty findings.
DeVos regulations: Allows schools to choose between allowing only accused students to appeal and allowing both parties to appeal, thereby requiring the accused student to prove his innocence twice when the initial panel returns a not-guilty finding.
Practical effect: Minimal change. DeVos’ interim guidance (September 2017) gave schools the option of creating fairer systems by eliminating double-jeopardy principles. As far as I know, only the University of Kentucky has accepted her invitation. It’s possible, however, that this provision could have some effect in lawsuits by accused students since universities would no longer be able to blame the unfair policy on federal orders. Several lawsuits (Michigan, Michigan State, Coastal Carolina) have involved unfair actions by campus appeals boards.
Obama-era guidance: “Strongly” discouraged schools from permitting an accused student from directly cross-examining his accuser. Since most schools also prohibited the lawyer for an accused student from questioning the witness, this effectively meant that OCR discouraged all cross-examination. There was no other mention of the concept in its guidance.
DeVos regulations: Recognizes the importance of cross-examination in determining the truth. Requires schools that use hearings to permit some form of questioning of the accuser, but doesn’t require allowing a lawyer or an advocate for the accused to conduct that questioning. Doesn’t require schools to hold hearings at all; according to Robby Soave’s reporting, requires an “effective substitute” to cross-examination for schools that use the single-investigator model. The regulations do not appear to explain how the single-investigator process, which is explicitly designed to eliminate cross-examination, could replicate the benefits of cross-examination.
Practical effect: Rhetorically, this is a 180-degree shift from the Obama-era guidance—from seeing cross-examination as something to be discouraged to seeing it as something necessary for fairness and truth-seeking. Practically, however, universities that want to retain their guilt-presuming systems will be able to do so. Schools that use hearings can continue to forbid lawyers from speaking and instead, funnel questions for the accuser and other witnesses through the panel (which won’t be required to ask them). More problematically, the regulation’s framing likely will generate strong pressure from accusers’ rights organizations and their political and media allies for colleges to abandon hearings altogether in sexual misconduct cases, and adopt the single-investigator model in their stead. Resisting this pressure will require a degree of courage largely absent from university presidents during the debate over campus due process.
On this issue, courts will need to safeguard the rights of the accused, at least at public institutions. Recent rulings in lawsuits against Michigan and Penn State, and the 2017 Sixth Circuit ruling in Cincinnati made clear that courts understand the importance of some form of cross-examination to the due process clause’s promises of fairness. Students at private institutions, who lack this constitutional protection, will be out of luck on this matter unless they can position their unfair treatment as a violation of Title IX.
Overall, the proposed regulations appear to represent a good-faith effort to create a fairer system. But they’ll doubtless meet with furious resistance from many universities, and the question then will become whether OCR—or the courts—will be willing to enforce them.