Education Secretary Betsy DeVos on September 22 formally rescinded the Obama administration’s commands that universities use unfair rules in sexual-misconduct investigations—rules that had the effect of finding more students guilty of sexual assault. And she appears also to be preparing for far more forceful due-process protections down the road.
Those follow-on regulations could require schools to presume that accused students are innocent unless proven guilty, to allow rigorous cross-examination of accusers, and perhaps also to grant the accused the unqualified right to appeal adverse decisions, and more.
Meanwhile, the modest improvements that DeVos included in the “interim guidance” of September 22 let universities know how to comply with the Education Department’s requirements during the time between the end of the Obama decrees and the final adoption of new, carefully considered regulations.
DeVos and her team have good reason for this two-stage approach to reforming enforcement of Title IX, the federal law prohibiting sex discrimination in higher education. She has vowed not to emulate the process used by the Obama administration in its now-notorious decrees of 2011 and 2014, when it issued dozens of pages of detailed “guidance” on Title IX compliance without prior notice and without giving the public a chance to comment.
The Obama decrees flouted basic principles of sound policymaking and, in the view of many experts, violated the notice-and-comment provisions of the Administrative Procedure Act of 1946. Catherine Lhamon, Obama’s second head of the Education Department’s Office for Civil Rights, recently derided those provisions as “essentially a popular vote.”
The Education Department’s announcement on September 22 was presaged two weeks earlier in a major address by DeVos at George Mason University’s law school, where she expressed grave concern about the unfairness of the Obama decrees and of many campus sex tribunals and declared that “no student should be forced to sue their way to due process.” Around 180 accused students have sued their schools since the Obama administration’s April 2011 “Dear Colleague” letter.
The DeVos criticisms echoed those of distinguished civil libertarians, law professors, and journalists. They have deplored the now-revoked Obama requirements that schools, among other measures, use a very low burden of proof (“preponderance of the evidence”) for branding an accused student a rapist; all but abolish meaningful cross-examination of accusers; and subject accused students to a form of double jeopardy by allowing accusers to appeal not-guilty findings.
These requirements dramatically increased the chances of finding an innocent student guilty, as scholarly research by John Villasenor has confirmed. As a group of Penn Law School professors stated, the Obama-era guidance placed “improper pressure upon universities to adopt procedures that do not afford fundamental fairness.” And as 28 Harvard law professors asserted, this led too many schools to establish procedures that “lack the most basic elements of fairness and due process, are overwhelmingly stacked against the accused, and are in no way required by Title IX law or regulation.”
The “Dear Colleague” letter rescinding the 2011 and 2014 guidance quoted each of these passages, emphasizing the importance of due process in a way that would have been inconceivable during the Obama years.
The frenzied reactions of many Democratic politicians and campus activists to DeVos’s carefully reasoned, balanced speech and to the September 22 guidance show how difficult it will be to replace today’s systematic discrimination against accused students with disciplinary systems that will be fair to accusers and accused alike.
The Education Department announcement included an apt quotation from one of the nearly 70 state and federal court decisions upholding (often on preliminary motions) lawsuits filed by accused students. The opinion, by Judge F. Dennis Saylor, assailed a decision by Brandeis University in which a student had been found guilty of “sexual violence” for such offenses as awakening his sleeping boyfriend with kisses.
In an understated indictment of the unfairness at the core of the Obama approach, Judge Saylor wrote:
“Whether someone is a ‘victim’ is a conclusion to be reached at the end of a fair process, not an assumption to be made at the beginning. . . . Put simply, a fair determination of the facts requires a fair process, not tilted to favor a particular outcome.”
The interim guidance, which will remain in place until the Education Department conducts its notice-and-comment process and issues new regulations, points universities toward procedures designed to pursue the truth rather than presume the guilt of the accused.
Thus, for example, the interim guidance allows a college to depart from the Obama-required “preponderance” standard and to use instead the more rigorous “clear and convincing” standard of proof, if that is the standard that the school uses in non-sex disciplinary cases.
The interim guidance also gives colleges the option of allowing meaningful cross-examination, which the Supreme Court has described as “the greatest legal engine ever invented for the discovery of truth,” and of giving accused students the right to appeal without subjecting them to appeals by accusers of not-guilty findings.
But it seems likely that few colleges or universities will respond to the interim guidance by creating fairer procedures. University of California president Janet Napolitano, for example, who had castigated the Obama decrees in a 2015 article, has changed her tune since DeVos started championing due process. Napolitano claimed that DeVos was too focused on “outlier” cases of unfairness and vowed that the UC system would retain its current procedures—which one state judge compared to a “kangaroo” court—no matter what the Education Department does.
Accusers’ rights organizations roundly condemned DeVos’s move and doubtless would join their many faculty supporters in aggressively attacking any college president who chooses fairness to both accusers and accused over presuming male guilt.
If most schools, as we expect, reject the Education Department’s invitation to abandon their current one-sided policies, what will Betsy DeVos do?
We hope and believe that she and her team will issue strong new regulations specifying procedures that schools must use to qualify as fair, including those sketched above.
During the months before new regulations can be adopted, probably the greatest impact of the interim rules will be felt by university lawyers, who can no longer argue in court—as they have done with some success—that any unfairness in their procedures was mandated by the Education Department. That dog won’t hunt any more.
The interim guidelines still leave much to be desired. For instance, the Education Department continues to allow schools to use a deeply problematic, Obama-blessed system in which a single person serves as lead investigator, prosecutor, judge, and jury.
But we hope to see such flaws fixed in the final regulations. And if they are not, the courts might have the last word. In a major decision issued September 25, a three-judge panel for the Sixth Circuit Court of Appeals, including judges nominated by presidents of both parties, ruled against the University of Cincinnati because it failed to give an accused student any chance to cross-examine his accuser.
The Sixth Circuit concluded that in “he said/she said” cases that turn on the credibility of the two parties, a university’s “failure to provide any form of confrontation of the accuser made the proceeding . . . fundamentally unfair.” This was an implicit rebuke to the Obama policy and makes it more likely that DeVos will not merely permit but also require cross-examination rights for accused students.
For the most part, DeVos continues to move in the right direction, against overwhelming odds, to create a fairer system for all students.