This article originally ran in The National Law Journal on September 12, 2018.
Lawyers are in two minds about potential implications of U.S. Secretary of Education Betsy DeVos’ move to draft changes to Obama-era policies for schools handling sexual misconduct allegations under the Title IX federal law.
While most attorneys favor concrete rules over the general guidance provided by the Obama administration, key issues such as jurisdiction, standard of evidence and equal protection divide them. Some say the rules will silence and intimidate victims, while others believe the proposal would provide due process for accused students facing potentially life-altering penalties.
“My chest was pounding,” said trial lawyer Andrew T. Miltenberg of Nesenoff & Miltenberg of New York after leaving a Title IX hearing on Sept. 6. “I thought I was in some sort of charade or show trial. And I could not believe, even though I should now be used to it, the abuses of process and the complete ‘anything goes’ atmosphere. As long as we have that, no one should be happy.”
The main issue, according to attorneys, like Miltenberg, involved in cases alleging sexual assault on campus: feeling they’re participating in a “circus” of a hearing conducted by an “ill-equipped and ill-trained” investigative panel.
Last year, when the U.S. Department of Education rescinded a 2011 Dear Colleague letter that had served as standalone guidance for universities and colleges investigating and pursuing sexual assault claims, many took that as a signal that new rules were coming.
“The intent behind [the letter] was to make it less difficult for a person complaining about a violation to get relief,” said Jeremy Mishkin of Montgomery McCracken Walker & Rhoads in Philadelphia.
But this, he said, caused a “dilemma.”
“People accused of these things quite often felt they were, for all intents and purposes, being charged with a crime,” Mishkin said.
According to Mishkin, students accused of sexual assault often ask whether they have the right to confront their accuser or to see the evidence against them.
“The answer is, in many cases, [is] ‘No. You don’t,’” the attorney said.
Mishkin called the Dear Colleague letter a “noble effort,” but said it might have conflated the notion of protecting a victim’s mental and physical health with the adjudication process.
“You want to be completely supportive of the victim, but at the same time, as a society, we want those who are accused of acts that are criminal to have due process of law. Those are two forces that are very fundamental American ideals,” said Mishkin.
Elliott Greenleaf attorney and former Title IX coordinator for the University of Virginia Kelley Hodge said she finds the idea of giving schools the option of using clear and convincing standard of evidence “concerning.”
“Is that really fair and appropriate across the board?” Hodge asked. “It can create in my opinion levels of inconsistency and inequity that are going to potentially undercut the essence of what Title IX is supposed to be.”
Boston criminal defense attorney Norman Zalkind of Zalkind Duncan & Bernstein, who’s represented both complainants and respondents, is dissatisfied with what he sees as a widespread “presumption of guilt” in the Title IX arena.
“If somebody is sexually violated, attacked or harassed they should be protected, but there should be protections on both sides because you’re asking for very serious punishments,” Zalkind said.
He calls the system a “kangaroo court” that puts young defendants on trial with little due process. Instead of the current process, Zalkind hopes for one requiring a “clear and convincing” standard of evidence.
“There’s a bias. Students’ lives have been ruined and their families have gone broke over this, so there should be better protections,” he said. ”This isn’t like drinking on campus. This isn’t like taking a drug or causing a little damage to the house. These are very serious charges.”
According to Zalkind, schools frequently suspend or expel the accused, and leave them with a record that can significantly hinder their academic and professional lives.
“A lot of times, they’re talked to before they have a chance to seek counsel or an adviser, and they don’t know what to say,” he said. “They’re 18 years old. They’ve been babied by their parents and they’re not ready for this.”
But not all attorneys want to see an overhaul.
Douglas Fierberg of the Fierberg National Law Group in Washington, D.C., worries that the proposed changes could discourage victims from reporting sexual abuse, and pointed out that in many alleged sexual assault cases he’s handled, the accused “almost without exception” predictably deny the allegations. Fierberg has been a trial lawyer for almost 30 years and aided in the conception of the first legal practice focusing solely on school violence issues nationwide.
“The changes DeVos seems prepared to make are, in a word, ridiculous,” Fierberg said. “The Obama standards reflect 21st century standards, not the 18th century standards Betsy DeVos is proposing.”
The attorney is also tired of hearing “he said, she said”—an expression that suggests adjudicators can’t arrive at the truth of a case.
“Fact finders are entitled to look at ‘he said, she said,’ or ‘she said, he said.’ It’s a misconception that means decisions can’t be made. Sometimes somebody’s believable and the other person is not. Juries make those determinations every day. You can’t avoid it because he said it and she said it differently. Obviously, one’s not telling the truth,” Fierberg said.
But according to Miltenberg, who specializes in campus misconduct due process and Title IX, schools “shouldn’t be in this business.”
“I literally just finished a Title IX hearing at a major university, and I had one of those ‘I can’t believe this is actually happening’ moments,” Miltenberg said. ”I sat there today and listened to, in some respects, half of the story.”
According to Miltenberg, some of the evidence given by his client “was not reflected anywhere in the hearing packet,” from which the panel bases its decisions.
“It is an absolute free-for-all when a college or university handles a Title IX investigation and hearing. You’ve got hearsay all over the place. You have things like, ‘I read on Facebook that my friend’s mother’s aunt knows this guy and she said that she heard at a Mahjong game four years ago that he was a rapist.’ I’ve heard exact statements like that,” Miltenberg said.
Victims attorney Fierberg has a problem with DeVos’ proposed changes to jurisdiction.
In past litigation with Kansas State University, two women were assaulted at fraternity houses and events by students—just off campus.
“The accused were also taking classes on campus, and Kansas State took the position that it had no obligation to conduct investigations and to take action on campus to ensure that the educational rights of the complainants were protected,” Fierberg said.
The school’s stance is one shared by DeVos, but Fierberg said it imposes a “fiction” on the definition of campus.
“Those students were still likely to encounter those rapists as they walked the halls to go to school, as they sat in the cafeteria. Whenever and wherever, expected and unexpected. And to pretend that that is outside the jurisdiction of the school to deal with, particularly when some of these activities are by student organizations that are recognized by the university and partially funded and supported by the university is just a fiction,” Fierberg said.
Tara J. Davis of Nesenoff & Miltenberg, Boston, who has specialized in campus assault due process and civil rights since its inception, said she understands the jurisdiction argument from both perspectives.
“I understand the group of people that say this is something that should only be handled by criminal courts or by the prosecutors and those trained in investigating these types of cases. On the other hand, there is a need for something to be done on the school level if there truly is some type of sexual assault on campus. Take the case of a small school where students are likely to run into each other. They’re both entitled to an education and to feel comfortable there,” Davis said.
Either way, investigating sexual assault allegations is a “great responsibility” that, according to Davis, should be handled by personnel that are “truly trained to investigate.”
“I’ve seen too many cases where that’s just not the case,” Davis said. “You often have a hearing panel composed of a French professor and an athletics director, which is great, but unless they’ve gone through extensive training, not two days with an organization.”
Department of Education spokeswoman Liz Hill declined to comment, and told The New York Times that its information is “premature and speculative.”
If changes are made, criminal and student defense attorney Shanlon Wu, of Wu, Grohovsky & Whipple in Washington, D.C., doesn’t anticipate a quick response from universities and colleges.
“I’ll be fascinated to see which school is going to be the first to put its neck on the chopping block. It’s going to be a race to be last on that,” said Wu, adding that most schools with established policies will likely avoid making changes so students don’t view them as being anti-victim.
In recent years, schools have seen litigation from all angles over Title IX policies and how they were implemented. Victims have sued schools claiming the school didn’t do enough to protect them and the accused have sued claiming they’ve had their due process rights violated.
According to Patricia Hamill of Conrad O’Brien in Philadelphia, a lot has changed since the 2011 Dear Colleague letter, and some of the protections that its critics characterized as overreaches may no longer be needed.
“The issue of sex assault is not going to get swept under the rug by some changes in the rules,” Hamill said. “People’s attitudes towards both victims of sex assault and what constitutes sexual assault have evolved. That is not going to fade into the background.”
Max Mitchell contributed to this story.