This article originally ran on Minding The Campus on February 6, 2019.
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.
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.’”
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.
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 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.