Four Reasons to Support the DeVos Title IX Rewrite

Betsy DeVos

A huge number of comments has greeted Education Secretary Betsy DeVos’s proposed rewrite of the unfair Title IX Obama-era regulations often used in hearings against men on campus. Four comments are unusually important.

Cross-Examination

The first, prepared by Patricia Hamill (who has handled many lawsuits from accused students, including the cases that yielded the powerful Brandeis and Notre Dame opinions) and Penn Law professor David Rudovsky, drew signatures from several lawyers who also have handled lawsuits filed by accused students.

The comment strongly defended the need for cross-examinations to adjudicate Title IX cases. “The current system in place in many schools,” the comment perceptively noted, “where parties can submit written questions, school officials will decide what questions to ask, and decision makers may never even see the parties in person, is not an adequate substitute.”

Hamill and Rudovsky highlighted the importance of the regulations’ provision that schools divulge adjudicators’ training to accused students but urged further clarification so as “to require schools to make their training materials publicly available, to ensure students understand their policies and processes, rather than simply making those materials available to specific parties after a disciplinary proceeding is complete.” They noted the importance of the rule’s recognition that unfair processes could constitute gender discrimination against either party—an “essential corrective to the view that Title IX allows (or should even be interpreted to require) procedures that are biased in favor of ‘victims.’”

[Harvard Zealots Abuse Title IX to Nail the Accused]

The comment highlighted the dangers of “trauma-informed” training—which, in too many cases, has prompted adjudicators to essentially presume guilt. “As used in many schools,” the signatories informed the Education Department, “the ‘trauma-informed’ approach does not give officials the investigative tools to explore impartially what happened, including whether, for example, the evidence supports a finding of miscommunication as opposed to misconduct. It is important that training not create ‘presumptions’ that the alleged conduct occurred or that a complainant’s account of the incident must be true.”

All the Evidence, Please

FIRE, a longtime critic of the one-sided Obama-era procedures, issued a lengthy, thoughtful comment repeatedly noting how the record of the past seven years, sadly, made some otherwise obvious provisions of the regulations necessary—the need for detailed notice, the need for neutral terminology in procedures and training, the need for universities to incorporate all evidence (rather than just inculpatory evidence) into their decision-making. As with the Hamill/Rudovsky comment, FIRE stressed the importance of the regulations’ cross-examination provision, but also urged the department not to limit the participation of students’ advisors just to the questioning process: “Active participation of advisors [throughout the investigation and hearing] is crucial because the stakes during campus proceedings are extremely high.”

The Harvard Law Plan

Few academics have more credibility on Title IX issues than Harvard Law professors Jeannie Suk Gersen, Nancy Gertner, and Janet Halley. The Suk/Gertner/Halley comment criticized the proposed regulations on definitional questions, but strongly endorsed the need for the government to mandate a fair process for both sides.

The Harvard Law professors did urge the Education Department to mandate the Harvard Law School model rather than attorney-directed cross-examination. (Harvard Law ensures that both parties have lawyers, and then has the lawyers submit questions to the panel to be asked, with clear guidance that all questions will be asked in the order and format desired unless the questions are irrelevant.) If followed along the lines of Harvard Law, currently the nation’s fairest Title IX adjudication system, what the comment terms the “submitted questions” model would accomplish the department’s goal of providing the accused student with a meaningful chance to challenge the credibility of witnesses.

[Should We Believe Whatever a Woman Says About Sexual Assault?]

Unfortunately, there are few other examples of this model successfully protecting the due process rights of the accused—and many examples to the contrary. (For a high-profile example, see this amicus brief from nearly two dozen professors at Cornell Law School, discussing Cornell’s exclusion of obviously relevant questions in a Title IX case.) That record suggests the department’s provision, which would be more difficult for universities to evade, would provide a better approach.

The Harvard Law professors’ comment urged the department to do more regarding data-compilation—an important suggestion that the department should adopt. “We have long been concerned,” the trio noted, “that Title IX is having a disproportionately negative impact on men of color, which makes the protections of due process and other legal rights all the more important. There may be other demographic groups that are being subjected to a disproportionate level of allegations, disproportionate sanctions, or other unfairness.” Encouraging universities to collect this data, they noted, might help quantify the extent of this problem.

The ACLU Flip Flop

The final noteworthy comment came from the ACLU. After DeVos issued the proposed regulations, the civil liberties organization responded with a surprising tweet-thread proclaiming, “We stand with survivors.” Another tweet criticized the regulations for promoting “an unfair process, inappropriately favoring the accused.” (It was jarring to see the ACLU denounce the federal government for being too sensitive to the rights of the accused.) The tweet-thread, and a brief follow-up statement from the group generated sharp criticism from figures such as Conor Friedersdorf, Ken White, Radley Balko, Scott Greenfield, Robby Soave, and others. (Stuart Taylor and I joined in this criticism.)

While the ACLU’s comment was very critical of DeVos in many respects, the organization abandoned some of the tweet thread’s approach by mostly embracing the need for a fair Title IX process. Departing from the position embraced by Democratic attorneys general and legislators, the comment unequivocally endorsed a hearing with cross-examination: “Cross-examination is an essential pillar of fair process.”

The ACLU urged the department to be more sensitive to the rights of accused students who are simultaneously facing criminal allegations. And it recommended a series of helpful technical changes in the regulations (regarding evidence, the need for a trained lawyer as part of the panel, the need to “provide that a recipient must provide a lawyer to either party upon request for the live hearing,” and an assurance that one “student’s representative in the hearing cannot be a person who exercises academic or professional authority over the other student”). Adoption of each of these suggestions would produce a fairer hearing for both parties and increase the likelihood that the adjudication would be a just one.

The ACLU comment also embraced two Obama-era procedural holdovers (preponderance of evidence standard and dual appeals) that have posed fairness concerns since 2011. That said, the proposed regulations already require dual appeals for all schools that feature appeals and allow schools to choose the preponderance standard anyway. It’s hard to imagine many (any?) would not make such a choice, given the current campus climate. So, the practical effects of these recommendations are minor.

Curiously, however, after spending several paragraphs explaining that preponderance is the appropriate standard to use in Title IX cases, the comment doesn’t object to campus systems in which accused professors are judged by a higher threshold than accused students. In general, this seems an unfair system (the proposed regulation forbids it). But to the extent differing standards would be acceptable, accused students would be worthier of a higher evidentiary standard, given that professors often have other procedural protections (union representation, rights embedded in a faculty handbook or even state law) that students lack.

There was a broad area of disagreement between the FIRE and Hamill/Rudovsky comments on the one hand and the ACLU/Harvard Law comments on the other. The former two comments largely supported the definitional elements of the regulations (definition of harassment, safe harbor provisions, limiting language about college responsibility for adjudicating some types of off-campus activity). The latter two comments were strongly critical of DeVos’ efforts on these issues.

To a considerable extent, this disagreement reflects differing predictions of how universities will respond to this question in the future. To the ACLU and the Harvard Law professors, the greater danger is university underenforcement of Title IX, requiring more stringent regulations; to FIRE and the Hamill/Rudovsky signatories, the greater danger is university overenforcement of Title IX, threatening other rights (especially academic freedom and free speech), suggesting a need for more circumscribed definitions of harassment and Title IX coverage. The last few years on most campuses have been characterized more by excessive zealotry than university indifference. But, in general, the practical effect of these differences between the comments (regardless of what language the final rule uses) is likely to be minor: any college president in the current environment who did not present herself as a Title IX hardliner would be risking continued employment. So a looming era of university indifference seems highly unlikely.

The regulations’ key elements, in short, come in the procedural rather than the definitional realm; and on those questions, these four comments are mostly in agreement in the need for more robust procedural protections for accused students.

KC Johnson

KC Johnson

KC Johnson is a history professor at Brooklyn College and the City University of New York Graduate Center. He is the author, along with Stuart Taylor, of The Campus Rape Frenzy: The Attack on Due Process at America's Universities.

7 thoughts on “Four Reasons to Support the DeVos Title IX Rewrite

  1. Either sexual harassment/rape/sexual assault are crimes or they are not. If they are crimes they need to be clearly defined, statutes prohibiting them promulgated and then accusation and complaints handled by the criminal justice system. If they aren’t crimes then they can be handled as civil matters. Why schools would be required to get involved is a mystery. Why the department of education would be involved is a greater mystery. Let the police handle criminal matters and fire all the university sexual idiocy deans, administrators, sexual investigators and inquisitors. Universities functioned a lot better, and at a lower cost, before these parasites attached themselves to university administrations already bloated with diversity staff.

  2. I have notice (nearly) every campus provide women, feminism, queer, gender and sexuality. Nearly all campus are sex discrimination violation against Title IX for excluding men studies.

    Should we report to Betsy DeVos that?

    1. I fear equity on that — Imagine a Men’s Studies program set up along the lines of the APA’s concepts of “Toxic Masculinity” and the rest. Then what happens is that those folks get defined as “legitimate” male spokesperdaughters (not “persons” as it contains “son”), and then the normal guys on campus start getting it from both sides.

      Now as to statistical sex parity, that is something we should insist on.

      If 50% of the athletes on campus have to be female, then why don’t 50% of the students on campus have to be male? As it is now, ED-OCR ignores the latter to the point where some public IHEs are approaching 70% female — only to then demand that 70% of the athletes there be female.

      I’d like to see a requirement that even 1/3 of the students in teacher training programs be male — even a third as it is now something like 90% female amongst American-born students. Even that would change K-12 and K-12 is where a lot of our problems are coming from.

      But no, we do not want Men’s Studies programs — I’ve seen some of this tried and it is not pretty….

  3. I fear that the Republican party has no power of organizing demonstrations–not even those that can be made solely online,i.e. the request for opinion regarding Title IX. Our local R party missed that opportunity completely. They have never been able to get together more than 20 people to organize and carry a couple of signs. The Community Organizing thing just is not part of their skill set.

  4. Sadly, I fear that at best, what we will wind up with what will largely be a difference without a distinction.

    First and foremost, personnel is policy. It wasn’t the laws which precluded Black voter registration in the Jim Crow South (the 15th Amendment had been passed a century earlier) — the problem was the voting registrars asking “how many bubbles in a bar of soap” and the rest.

    So too here — the problem is that we are now three generations into ideological zealotry in the offices administering these policies and hence it really doesn’t matter what the policy states or how many purported procedural safeguards the policy supposedly has because the zealots are still going to do whatever they damn well please, anyway…..

    Twenty years ago, Alan Kors and Harvey Silverglate’s Shadow University described how there was a shadow administration running things behind the scene, and things are exponentially worse now.

    Remember that we are talking about people who interpret “within 10 days” to mean “sometime in the next four months, if we feel like it” — and get away with that. They fully know that most kids can’t drop $20K on a lawyer’s desk tomorrow, nor likely find an attorney able to help him if he could. Increasingly, the student has already been tried & sentenced in absentia, all we will get is a more elaborate pro-forma show-trial.

    And even if the kid manages to accomplish the herculean task of proving his innocence, they’ll just get him for something else, later… I saw this happen repeatedly at UMass Amherst with the free speech stuff — told that they couldn’t punish students for unpopular speech, they just waited a few weeks and got them on some other pretext. As as it’s all supposedly “secret”, no one officially knows, but most everyone does.

    For example, when UMass couldn’t “get” a group of conservative students for a cartoon drawn at a private post-election party, they instead “got them” on the pretext of underaged drinking and proceeded to destroy their futures for that. While I never learned exactly what was written on their transcripts, I know that it was enough to destroy their futures (keeping one out of law school) and while they’d been promised that it would be removed before they graduated, it wasn’t.

    That’s the second thing here — we are dealing with young people who trust older adults. particularly those with titles. They don’t realize that the promises that administrators are making aren’t worth the paper they aren’t written on — and even if the promises are reduced to writing, they don’t see things like the misplaced modifier which enables the administrator to later claim that the sentence meant something completely different from what the was student was told it meant.

    Third, we need to realize that institutions are increasingly moving away from the hearing model because it presumes that the accused students have a opportunity to defend themselves. Instead, they are going to the therapeutic mental health approach and the Behavioral Intervention Team model, with things such as the Bias Assessment Response Teams trying students in absentia.

    We well could move from where young men are forced to defend themselves against allegations of what they didn’t do to the impossible task of defending themselves against allegations of what they might do at some point in the future. And worse, in the “mental health” context where denial itself constitutes proof — it’s the true witch trial model.

    And fourth, the damage is in the accusation, not the sanction. As anyone who has worked in a college or university knows, there truly is no such thing as confidentiality on campus where rumor and gossip are currency of trade. Even without “doxing” and other organized efforts, there are no secrets and these young men are defamed even if they were to be found “innocent”, which they never are — at best, it’s “they couldn’t prove it.”

    This presumption will remain even if DeVos were to somehow introduce a truly fair process — and worse, as the accusation is technically confidential, the student will be rumored to have done far things worse than what he actually was accused of having done. That’s the inherent problem with commingling “rape” and “sexist jokes” — one actually accused of the latter will be presumed to have done the former.

  5. Not being a lawyer, I do not have much experience or knowledge when it comes to cross-examination. However, I recall that when Bradley Bannon was cross-examining Dr. Brian Meehan in the Duke lacrosse case, he initially got a “No” unexpectedly as a response. His next questions were predicated upon the first answer being “Yes.” He kept pressing and eventually discredited Dr. Meehan. Would such an exchange be possible under Harvard Law’s model of submitted questions?

  6. I’ve followed the submission of comments at the official site of regulations.gov. This is a process that officially closed on January 30.

    I note as I write this comment that 104,353 comments were received.

    Thus far 9,536 of those comments have been posted online and are viewable.

    Thus I was able to find KC’s comment which is number ED-2018-OCR-0064-6244.

    It I’ve looked at several of the other comments as well. Painfully far too many of them are opposed to the rewrite.

    It is beyond me how the OCR people are going to be able to wade through the monumental number of comments.

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