There Is No Easy Way to Clean Up Obama's Title IX Mess
Dismantling Obama-era over-regulation is supposed to be a top priority of the Trump administration. And few regulations have caused as much consternation as Obama's reinterpretation of Title IX. Alas, no amount of subsequent policy can easily disentangle this overreach from campus life.
Due process stalwarts and suckers for the rule of law loathe the 2011 "Dear Colleague" letter—a federal guidance from the Education Department's Office for Civil Rights that used a 40-year-old gender parity statute to enshrine an extrajudicial regime for sexual assault adjudication.
Title IX was a Nixon-era higher education statute, until recently best known for requiring equal support for men's and women's college athletics. Banning gender discrimination in higher ed was Title IX's actual intent. The Obama administration cleverly timed its redefinition, popular among a certain sort of progressive, to kick off the president's campaign for re-election. It removed customary legal protections for accused students while also drumming up political capital from a common faith in campus rape crisis. And in the administration's latter years an accompanying thought campaign—chalked up to "re-education" by at least one former Title IX administrator who regrets the unfair rulings she was made to deliver—codified a sexual paranoia already culturally ascendant. Sexual violence is everywhere you look, the White House instructed.
Until this very way of thinking itself changes, legal experts say, there's little reason to hope rolling back the guidance will actually effect reform. What, if anything, Secretary Betsy DeVos decides to do to restore due process protections to these unfair proceedings won't change cultural attitudes. The Office for Civil Rights could recommit to fairness in a subsequent guidance document, condemn procedural violations of due process and—like the Obama administration before them—publish its own wall of shame: A list of all institutions under investigation for stripping students' inalienable rights.
But, really, what difference would it make? I asked Brett Sokolow, CEO of the National Center for Higher Education Risk Management and the Association of Title IX Administrators, after the election and again last month. "Those structures won't be dismantled overnight, given the nature of bureaucracy and the ponderous path to change that characterizes modern universities," Sokolow said back then, adding that changing university culture is like trying to turn a cruise ship. Plus, we can count on the rape culture narrative to kick in as more and more Title IX decisions crop up in the courts: "80 percent of federal judges are Obama appointees, and are likely to feel strongly about the need to enforce Title IX if a vacuum in administrative enforcement results," he said, two and a half weeks after the election.
His more recent comments to me suggested a path forward for enhanced equal protections, however. "I think that clear OCR guidance on due process would begin to assert the balance needed on campuses. Already, the OCR decision regarding Wesley College has begun that process."
Back in October, the Office for Civil Rights determined that Wesley College in Dover, Delaware, had failed in the fair treatment of accused students. (The Department of Education's statement cited "several incidents in which the college provided no evidence that accused students were interviewed before receiving interim suspensions, some on the same day.") To Sokolow, this censure meant change was coming. "It was a clear signal to colleges from OCR that balancing the rights of all parties is essential."
In April, Secretary DeVos met with Georgia state representative Earl Ehrhart, who sponsored a bill in his state legislature to require that accusations of sexual assault on college campuses be reported to law enforcement. The meeting, I'm told, was "pleasant but inconclusive." And although the Georgia House passed the bill by a wide margin, it's unlikely to make it through the upper chamber in its current form. Advocates for fairness, those who condemn campus "kangaroo courts," tend to support mandatory reporting to police.
The infamous "Dear Colleague" letter, never subject to congressional review nor even submitted for public comment, required colleges to adjudicate charges of sexual misconduct in internal tribunals and according to a "preponderance of evidence" standard, according to which an accused student need only be more likely guilty than innocent. Good people will invariably assume a victim's truthfulness in most cases, as will a disciplinary process stripped of traditional protections.
In their indispensable book The Campus Rape Frenzy: The Attack on Due Process at America's Universities, KC Johnson and Stuart Taylor Jr., explain the legal and cultural origins and ramifications of OCR's actions.
OCR justified its new standards by comparing campus sexual assault hearings to civil litigation, which also uses a "preponderance of the evidence" standard and lets either side appeal. But civil litigation, unlike the campus proceedings overseen by OCR, operates under a panoply of rules to ensure fairness. It allows all parties representation by legal counsel; it has procedures to ensure discovery of relevant evidence; it requires witnesses to testify under oath; and, barring a settlement, it concludes with a public trial, often by jury, in which both parties testify subject to cross-examination. […] To be sure, due process does not require that college proceedings be as rigorous as criminal proceedings. But Supreme Court precedent holds that effective due-process protections are most critical when official actions affect important private interests and "the risk of an erroneous deprivation" is great.
There is no simple legal or legislative fix, prominent attorney Andrew Miltenberg has learned. He's earned a reputation as the "campus rape lawyer," having advised and defended scores of young men accused of sexual assault since 2013, when he argued in a case against Vassar that Title IX must also protect accused men from gender discrimination. Miltenberg, who's currently suing the Department of Education, takes his clients' struggles to heart—he has two children in college, a boy and a girl. He worries.
But only lately, within the last several months, he told me, has he realized the magnitude of what he and his clients are up against. After deposing investigators, Title IX coordinators, and college students, in lawsuits that have gone deep into discovery, he's learned how far the bias goes—how far beyond the reach of any new guidance or law. "There has become an institutional culture at most universities that they're not going to be able to legislate out," he told me.
"Even if, for example, Monday morning, the headlines said, 'Title IX 'Dear Colleague' Letter Is Revoked,'" and even if the Department of Education is directed to take no further actions under the Obama administration policies regarding sexual assault on campus, he said, "With the majority of universities that have staffed up, that have filled positions of power within the universities: investigators, Title IX coordinators, deans of student life, panel members for disciplinary hearing panels, that have been trained in the last of years with the auspices of the 'Dear Colleague' letter hanging over them." At this point, "It's going to take almost a seismic change," he said. "You're not going to be able to legislate out what has become an accepted way of thinking and reacting to allegations of sexual misconduct."
Institutional practices the guidance required administrators to enact have, in practice, undermined precisely what the original statute meant to promote: equal footing between young women and their male counterparts, during these all-important formative years. Instead a cult of victimhood, enshrined in federal mandate, makes every accusation infallible. It's an alarming injustice to those unfairly accused—and they are many—but it also bizarrely undercuts the achievements of the women's movement.
An appetite for crisis fuels a common faith in the roundly and repeatedly debunked (but sticky as ever) claim that 1-in-5 college women are sexually assaulted. And disabusing the campus consciousness of a crisis the Obama White House stoked—with help from well-chosen celebrity spokesmen, no less? Miltenberg is probably right: It will take "seismic change."
Families whose sons meet the blunt end of a Title IX investigation do experience a seismic sort of shock, he told me. His clients' parents never quite anticipate the consequences of these investigations: "You don't realize until it's your own child, you don't realize how this impacts your child's future until it's your own child."
A reverse thought campaign from the Trump White House would most likely be grossly counterproductive. Only, per Miltenberg's assessment, an unforeseeable earth-shattering wake up call—the caliber of a family crisis, in other words—can ever redirect the Title IX status quo. (Or "turn the cruise ship," to mix every metaphor.) In reality, it might have to be more of a slow-building empathy campaign, advocating a fair process for the good of all.