The long-awaited end to the Obama administration’s policy on Title IX enforcement came today, but what eventually replaces it is still not settled. Education Secretary Betsy DeVos issued a memorandum this morning that withdraws two controversial “Dear Colleague” guidance letters that emphasized a lower evidentiary standard and, critics say, pressured schools into kangaroo courts in dealing with sexual assault and harassment. Schools at all levels will have to change their processes of enforcing Title IX protections to give more weight to due process and fairness to all sides, at least until more permanent guidance and regulation gets promulgated, DeVos instructed:
Building on her remarks from September 7, 2017, regarding the Department’s commitment to protecting all students from discrimination, today U.S. Secretary of Education Betsy DeVos announced the release of a new interim Q&A for schools on how to investigate and adjudicate allegations of campus sexual misconduct under federal law.
“This interim guidance will help schools as they work to combat sexual misconduct and will treat all students fairly,” said DeVos. “Schools must continue to confront these horrific crimes and behaviors head-on. There will be no more sweeping them under the rug. But the process also must be fair and impartial, giving everyone more confidence in its outcomes.” …
The Department of Education is also withdrawing the Dear Colleague Letter on Sexual Violence dated April 4, 2011, and the Questions and Answers on Title IX Sexual Violence dated April 29, 2014. The withdrawn documents ignored notice and comment requirements, created a system that lacked basic elements of due process and failed to ensure fundamental fairness.
DeVos concluded, “As I said earlier this month, the era of rule by letter is over. The Department of Education will follow the proper legal procedures to craft a new Title IX regulation that better serves students and schools.”
That means an extensive period of writing regulations, seeking comment, and then transitioning to proper enforcement on schools. In the meantime, the new guidance emphasizes due process and equal treatment within the adjudication process, plus the option of using a tougher evidentiary standard in the process, emphases mine:
Question 8: What procedures should a school follow to adjudicate a finding of responsibility for sexual misconduct?
Answer: The investigator(s), or separate decision-maker(s), with or without a hearing, must make findings of fact and conclusions as to whether the facts support a finding of responsibility for violation of the school’s sexual misconduct policy. If the complaint presented more than a single allegation of misconduct, a decision should be reached separately as to each allegation of misconduct. The findings of fact and conclusions should be reached by applying either a preponderance of the evidence standard or a clear and convincing evidence standard.19
The previous guidances from the Obama administration emphasized the ‘preponderance’ standard, which was a change from the stricter ‘clear and convincing’ standard applied earlier. The justification for this change at the time was, as former Department of Education attorney Hans Bader wrote in 2012, was that lawsuits use that standard — an irrelevancy in Title IX investigations by schools.
Politically, the Obama administration justified it by arguing that many instances of harassment or assault are difficult to judge, as they usually take place with few or no witnesses. The Obama administration therefore chose a standard which removed the benefit of doubt from the accused, citing highly questionable statistics to argue that it had a compelling state interest in imposing that standard to address a crisis on campuses. This new guidance allows schools to continue on the ‘preponderance’ standard if they choose, but now allows them the opportunity to return to the tougher standard without being penalized for it. Given the risk many face in lawsuits over the results of adjudications under the preponderance standard — and without the safe harbor of federal regulators imposing it — expect schools to revert back to previous practice in most cases.
That’s progress, but perhaps more importantly, so too is the emphasis on due process to all sides:
The decision-maker(s) must offer each party the same meaningful access to any information that will be used during informal and formal disciplinary meetings and hearings, including the investigation report.20 The parties should have the opportunity to respond to the report in writing in advance of the decision of responsibility and/or at a live hearing to decide responsibility.
Any process made available to one party in the adjudication procedure should be made equally available to the other party (for example, the right to have an attorney or other advisor present and/or participate in an interview or hearing; the right to cross-examine parties and witnesses or to submit questions to be asked of parties and witnesses).21 When resolving allegations of dating violence, domestic violence, sexual assault, or stalking, a postsecondary institution must “[p]rovide the accuser and the accused with the same opportunities to have others present during any institutional disciplinary proceeding, including the opportunity to be accompanied to any related meeting or proceeding by the advisor of their choice.”22 In such disciplinary proceedings and any related meetings, the institution may “[n]ot limit the choice of advisor or presence for either the accuser or the accused” but “may establish restrictions regarding the extent to which the advisor may participate in the proceedings.”23
These will all be meaningful improvements in the process, and at least a major step in restoring due-process rights to all parties in Title IX complaints. Missing, though, is any encouragement to refer allegations of sexual assault to police rather than adjudicating those cases through Title IX disciplinary boards, which should only be dealing with non-criminal alleged behavior. Courts are much better disposed to protecting due-process rights in the context of criminal prosecution, and frankly, that’s where those cases belong.
DeVos has made a good first step in ending the federal government’s role in pressuring schools to adopt kangaroo courts for Title IX investigations and adjudications. The next step needs to be objective, fair, and constitutional regulations to ensure justice for all students, rather than surrender to moral panics — or stonewalling of real victims.
Update: The link to Hans Bader’s essay no longer works, but he was kind enough to send me a link to another essay in 2012 that has the same explanation. I’ve updated it above.