The New Title IX and its Challengers

The last four years have witnessed a series of desperate attempts to frustrate Education Secretary Betsy DeVos’ goal of creating a fair Title IX adjudication framework to replace the one-sided guidance she inherited from the Obama administration. In 2017, when DeVos rescinded what one federal judge deemed the “infamous Dear Colleague letter,” accusers’ rights organizations unsuccessfully sued. The following year, after DeVos issued a preliminary version of the pending regulations, accusers’ rights groups flooded the comments process to create delays. Late last year, a feminist legal group developed a strategy to further delay the process by requesting meetings with the Office of Management and Budget. After these delays pushed the release of the regulations into the post-COVID-19 world, these same groups and their political allies cited the virus as grounds for an indefinite delay.

Thankfully, all of those efforts failed.

Now comes the final attempt: four lawsuits to block the regulations, filed by a coalition of blue-state attorneys general; the state of New York; the National Women’s Law Center (NWLC); and the American Civil Liberties Union (ACLU). Along with contemporaneous letters denouncing the regulations from House and Senate Democrats, the complaints provide an unintentional, if depressing, reminder of how one-sided ideas about campus justice first offered during the Obama era continue to dominate the thinking of Democratic officeholders on Title IX.

The regulations themselves address two major areas of concern. The first defines sexual harassment by tethering Education Department policy more closely to the Title IX statute and relevant Supreme Court precedent. As a result, universities are no longer required to adjudicate some off-campus sexual assault allegations or sexual harassment claims that don’t rise to a level of “severe and pervasive.” These definitional changes likely will have scant impact—the Department repeatedly notes that schools can continue to address these cases through their normal disciplinary processes, and it’s hard to imagine any college president, in the current political environment, who will decline to do so.

The regulations will also provide for a fairer adjudicative process—through cross-examination by an advisor, access for both parties to the evidence compiled by the university investigator, unbiased training for university adjudicators, and presumption of innocence for the accused. Since few, if any, institutions currently ensure that accused students receive each of these protections, these changes are far more consequential.

That said, fair procedures such as these should seem like common sense, given the life-altering nature of an allegation of sexual assault. It’s not easy to oppose the presumption of innocence. The ACLU’s lawsuit skirted the issue by attacking the regulations indirectly—maintaining that, even though Title IX and Title VI guidance has differed since at least 1997, the Education Department needed to use the same standards for Title IX and Title VI cases of racial and national-origin discrimination.

The other lawsuits, however, made no pretense of their opposition to fair treatment of accused students. Nor did Democratic legislators. They especially targeted the provisions of the regulations allowing both the accused and accusing students to cross-examine each other, through a lawyer or advocate.

Some of these critiques are absurd. For House Democrats, a system where a “criminal defense lawyer” could cross-examine an accusing student “flies in the face of common decency.” (They didn’t explain why.) Blue-state attorneys general attacked the regulations for allowing an accuser to be cross-examined by her professor if the accused student hired the instructor to represent him. (Why an accused student would do so was left unexplained.) The state of New York faulted the Education Department for not addressing the “conflicts” between cross-examination and “schools’ Title VI obligations to serve students and parents with limited English proficiency.” (The lawsuit didn’t indicate how students who had such “limited English proficiency” and could not answer questions in English could function in classes at New York colleges.)

At the core of the lawsuits’ opposition to cross-examination is the idea that fair procedures discourage actual victims from reporting their attacks. The Democratic attorneys general suggested that cross-examination would be too “traumatizing” to “survivors,” overlooking that that primary purpose of a Title IX hearing is to determine whether the complainant is a “survivor.” The NWLC fretted that cross-examination would burden accusers with “post-traumatic stress”—although, of course, a student who filed a false allegation could hardly experience re-traumatization through questions challenging her claims.

Incredibly, for some opponents of the regulations, even the presumption of innocence goes too far. To thirty-six Senate Democrats, plus Bernie Sanders, “requiring the schools to presume there was no wrongdoing” meant that “students coming forward will have the impression the school assumes they are not telling the truth.” The NWLC fantastically maintained that a presumption of innocence in Title IX cases was “based in sex discrimination and exacerbates the myth that women and girls often lie about sexual assault.” As a result, its complaint contended, the presumption “tilts the process” in favor of the accused.

The state of New York has indicated that it will seek an injunction to stop the regulations; the blue-state attorneys general did so on June 24. Despite the Supreme Court deeming cross-examination the “greatest legal engine ever invented for the discovery of truth,” the Democratic attorneys general cited three articles, two of which involved cross-examination of children, to contend that cross-examination actually leads “to less reliable outcomes.” In a remarkable assertion coming from chief prosecutors, the motion objected to cross-examination by an attorney on grounds that the lawyer’s “tactics may be unsuited for an education setting.” And the filing misrepresented the precedent of the Sixth and Seventh Circuits by claiming both circuits currently endorse a Title IX adjudication model in which parties submit questions to a hearing panel. In reality, the Sixth Circuit requires the type of cross-examination envisioned in the regulations; the Seventh Circuit is silent on the issue, and the ruling to which the attorneys general cited denounced Purdue for potentially employing a “sham” hearing.

Both the New York and the coalition filings should be longshots. Even though the Trump administration’s record in administrative law cases has been spotty, DeVos and her staff were careful in responding to the tens of thousands of public comments. It would, moreover, be extraordinary for a federal court to hold that cross-examination or the presumption of innocence violate Title IX. The clock is ticking: absent judicial intervention, fair procedures will come to campuses nationwide on August 14.


KC Johnson is professor of history at Brooklyn College and the CUNY Graduate Center.

Image: Gage Skidmore, Public Domain

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.

3 thoughts on “The New Title IX and its Challengers

  1. From The Economist on 24 September 2020: “The sanctions a university can administer are less severe than prison time, but on the extreme end they can still amount to ‘career capital punishment’ says one university president, who is hiring former judges to staff his college’s tribunal.”

  2. I generally agree with your point of view but this article shows an increase in right-wing buzz words that will not help the cause. Using terms like “blue-state” and tying this issue closely to Betsy DeVoss will not bring support or attention to this crucial issue. If it only resonates with an ideological lens, we won’t win support. And we don’t need it: the presumption of innocence is a fundamental concept of American democracy.

  3. “The regulations will also provide for a fairer adjudicative process—through cross-examination by an advisor, access for both parties to the evidence compiled by the university investigator, unbiased training for university adjudicators, and presumption of innocence for the accused. Since few, if any, institutions currently ensure that accused students receive each of these protections, these changes are far more consequential.”

    Without a ban on interim sanctions, the common practice of kicking the kid out now and then offering him a hearing later, this will merely be a distinction without a difference. He’s not able to attend his classes and even if he persists in fighting the allegations (from home), the best he can hope for is to be readmitted just in time to flunk all his finals. So he flunks out of school — he’s still gone….

    Likewise the presumption of innocence is a moot issue when the Dean (who supervises the hearing officer) has already made her decision as to both his guilt and his punishment (i.e. the interim sanction).

    And litigation is really not an option for the 3/4 of students attending public universities because of the 11th Amendment and state tort claim limits. Where Oberlin is going to have to pay Gibson’s Bakery somewhere between $25,049,000 and $44,000,000, the 11th Amendment and state tort claims acts limit suits against public entities. (In Massachusetts, the limit is $100,000.)

    What this means is that the most a contingency fee lawyer could possible get is $33K for what is going to be a complicated case and few are going to be interested. Likewise, knowing that liability is limited to $100K, administrators are not worried about a multi-million dollar jury award and hence in no hurry to settle.

    Title IX offers us a solution to this: states can be required to waive sovereign immunity as a condition of receiving Federal Funding and already have — that’s how we got into this mess in the first place. Hence the Higher Ed Act’s re-authorization ought to include a provision mandating a waiver of both “sovereign immunity” and state tort claim act limits in suits filed by students.

    That — or a dearth of male students — is the only thing that will end this stuff.

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