The Takedown of Title IX
Last year, the phone rang in the office of the New York attorney Andrew T. Miltenberg. On the line was Tom Rossley, a trustee for 23 years at Drake University in Iowa. His son, Thomas, had just been expelled after a woman accused him of rape, and Rossley, such a longtime booster that he was sometimes called Mr. Drake, was on the verge of being kicked off the board for protesting the verdict, he believed.
While a trustee’s son might be expected to receive favorable treatment, Rossley thought that possibility had been eclipsed by the school’s greater urgency to demonstrate how seriously it took sexual assault, because it was under federal investigation at the time for supposedly mishandling a victim’s complaint two years earlier. “I’m not definitively saying it didn’t happen,” he told Miltenberg. “I’m not saying it did happen. What I’m saying is we don’t know, and they didn’t really want to find out.”
As Rossley would explain to Miltenberg, on the night in question, Thomas, then 21, met up with a woman in his circle of friends. Each had drunk heavily. According to the school investigator’s report, the woman remembered Thomas having sex with her in his dorm room, her telling him to stop and him stopping. But Thomas, who said he’d had the equivalent of 15 drinks, didn’t recall having intercourse and woke up fully clothed. Rossley noted what he believed to be many flaws in the process of his son’s case, including the school investigator’s not accepting key witnesses — among them Thomas’s roommate, who claimed he was present in the room the entire night. Although in the classroom Drake accommodated Thomas’s lifelong language-based learning disability, which made communication difficult, he was left to defend himself in a nine-hour hearing, in which he frequently stumbled and was asked to speak up. (Drake declined to comment on the details of the case but broadly disputes the Rossleys’ characterization. In court filings, the school said Thomas could have introduced additional witnesses at the hearing and did not request disability accommodations.)
Rossley had contacted Miltenberg to ask him to handle their suits — Thomas’s claiming gender discrimination and due-process violations, and Rossley’s for retaliation after the board removed him. Miltenberg’s name was easy to find because by then he had established a reputation as “the rape-guy lawyer,” as a colleague describes him, or “the due-process guy,” as he sometimes calls himself. To Miltenberg, the Rossleys’ experience showcased “the disparity between how men and women are being treated” under Title IX — the federal law that prohibits gender discrimination in schools that receive public funds — and demonstrated how campus responses to sexual assault have become driven by internal politics and institutional fears.
A 52-year-old New York City native, Miltenberg spent most of his career on business litigation, often involving defamation. That work brought him his first college case in 2013, when an international student called to say he had been falsely accused of rape. It wasn’t defamation — the school found him responsible for nonconsensual sex — but Miltenberg thought it could be something else — a violation of due process. To him, the handling of the case seemed unfair: The student, whose English was weak, told him that he wasn’t told about resources available to him. The father of the accuser was on the faculty, and his colleagues judged the case. “There’s an old saying among lawyers: Justice is not the result, it’s the process,” Miltenberg says. “We give ourselves over to a system. We lose, we win. We hate losing, but you are able to at least say: ‘I couldn’t have asked the judge to do more than he did. He listened, he thought, he read.’ Here you are not having that experience.”
Miltenberg lost the case but found a calling: addressing what he saw as a crisis in campus Title IX processes, as universities around the country, he felt, overcorrected after decades of failing to take student sexual violence seriously enough. In the years since, Miltenberg estimates, he has represented some 150 students — almost exclusively men — in campus Title IX proceedings and around four dozen lawsuits against schools. His cases include the accused man in Columbia’s “mattress girl” scandal and the Colorado State University-Pueblo football player who was suspended despite the supposed victim’s denying she was raped.
Miltenberg’s two oldest children, who are twin brother and sister, just began their sophomore year of college, and if either were involved in a sexual-assault case, he says he would worry more about his son’s treatment than his daughter’s. He has developed a fearsome reputation among college administrators and the adulation of men’s rights activists, who believe feminism and politically correct campus culture prop up accusations from women who regret consensual sex. But he is also the focus of enmity from victims’ advocates, who see his efforts as feeding a backlash. He has suggested that if a campus assault isn’t “bad enough to report to the police, then maybe it shouldn’t be reported.” By his own admission, he has badgered Title IX officers to disclose whether they themselves were rape victims — an experience he believes fosters in them a “religious” conviction that “only a crazy woman would fabricate a report.”
In the past year, Miltenberg’s cause has widened into a public debate about whether the effort to ensure women’s safety has come at the expense of men’s due-process rights. An already polemical fight sharpened when President Trump’s administration came into power and began to methodically dismantle Obama-era policies. Miltenberg has said that Trump’s election, despite sexual-assault allegations, demonstrated that university practices are out of step with public opinion. Many of Trump’s advisers signaled support for accused men, as did the 2016 Republican platform. His secretary of education, Betsy DeVos, has donated to a group that supports accused students’ rights, and to temporarily lead the Department of Education’s Office for Civil Rights, which enforces Title IX compliance, she picked Candice Jackson, a conservative activist who told The New York Times in July that 90 percent of campus-rape allegations are dubious — mired in alcohol and relationship drama. (Jackson later apologized.) In September, DeVos declared current policies a “failed system” of “kangaroo courts” and “weaponized” civil rights, vowing that “the era of rule by letter is over.”
A decade ago, Title IX was better known as the law that forbade schools to banish women’s sports teams to the parking lot while men got the fields. Schools were required to address campus sexual assault under both Title IX and the 1990 Clery Act — a federal law, named for a Lehigh University freshman raped and killed in her dorm room, that requires colleges to report all campus crimes — but schools were only rarely sanctioned under the act, and few students knew how to lodge Title IX complaints. Reporting to law enforcement offered little help: Federal statistics compiled by the Rape, Abuse and Incest National Network show that only 310 out of 1,000 rapes are reported to the police. Just 11 of those are referred for prosecution, and just seven lead to felony convictions. Even if the criminal-justice system pursued sexual-assault allegations more aggressively, college victims would still have to face the accused on campus as investigations and prosecutions drag on for months, or even years.
In 2011, following an investigation by NPR and the Center for Public Integrity on campus assault, the Obama administration decided to act. The Office for Civil Rights sent a “dear colleague letter” reminding colleges that sexual harassment and assault create an environment so hostile that women’s access to education is jeopardized, violating their civil rights. The letter noted a commonly cited (though commonly challenged) statistic from the National Institute of Justice that one in five women are victims of attempted or actual sexual assault during college. A subsequent clarification of the letter created no uniform policy for how schools should adjudicate cases, but it offered recommendations like having schools inform students that drinking “never makes the survivor at fault for sexual violence” and discouraging colleges from allowing either party to directly cross-examine the other in investigations. Schools that failed to uphold standards risked losing federal funds.
Colleges responded by creating new Title IX offices and drafting individual policies that varied from school to school. Some universities use hearings; others employ a “single investigator” model, in which a school designee is responsible for both investigating and making a determination. More typical is something like this: After students disclose an assault to a “responsible employee,” that staff member must relay it to the Title IX officer, who determines whether a full investigation is warranted. If it is, the officer taps a staff member or external investigator who has been trained in Title IX procedures to contact the parties, interview witnesses and gather evidence. Complainants are asked to participate, but schools can proceed without them if they decide the claim poses a larger threat on campus. A report is produced that each party can comment on, and panel hearings are held. Until this September, Office for Civil Rights rules stipulated that all of this needed to happen within 60 days, and afterward, the parties could appeal.
Campus reporting of sexual misconduct spiked significantly, and that increase led to an outcry from conservative media, including writers for National Review and Town Hall, which argued that the guidance letter made accusations as good as a verdict. The day the Office for Civil Rights sent its letter, the federal government made “all sex unsafe on campus,” the libertarian magazine Reason said.
The most widespread criticism was that the letter forced schools to lower their standard of proof when assessing claims, to the “preponderance of evidence” standard commonly used in civil lawsuits. Unlike the higher standard used in some civil trials, which require “clear and convincing evidence,” or the highest standard used in criminal trials, which require certainty “beyond reasonable doubt,” preponderance is often described as 50.01 percent certainty of guilt. If an accused student is found more likely than not to have committed the offense, he or she is “responsible,” in the parlance of campus hearings. While there were exceptions before 2011 — schools that used “clear and convincing” or, in a few instances, “beyond reasonable doubt” — preponderance was used in about 80 percent of colleges that had any fixed standard.
Victims’ advocates argued that it followed an established legal principle: In civil cases, where criminal penalties aren’t on the line, the burden of proof is lower. But critics viewed the mandate to use preponderance as a means to finding more accused students responsible, and the standard became a sort of shorthand — that college men were no longer presumed innocent and were being expelled en masse over “regret sex.”
It was an oversimplification, but also one that reflected real problems in the process. To Joe Cohn, the legislative and policy director of the Foundation for Individual Rights in Education (FIRE), a nonpartisan nonprofit that works on free speech, religious liberty and due process in higher education, the larger issue is that the lower standard exists within a “parallel judicial system” that lacks other due-process protections — like the consistent right for attorneys to meaningfully participate in hearings and access to the legal procedures to investigate complex cases. Schools can’t subpoena witnesses to compel relevant testimony or put people under oath; they rarely have access to forensic evidence or processes for discovery.
“O.C.R.’s rationale” was that preponderance of evidence “was the standard for suits alleging civil rights violations like sexual harassment,” wrote Nancy Gertner, a retired federal judge and current Harvard law professor, in The American Prospect in 2015. “True enough, except for the fact that civil trials at which this standard is implemented follow months if not years of discovery.” She continued: “It is the worst of both worlds, the lowest standard of proof coupled with the least protective procedures.”
In 2016, FIRE, which had been connecting accused students with lawyers and offering a class to attorneys on handling complaints, put out a recruitment call for plaintiffs to sue the Department of Education over the guidance letter. There was already an abundance of lawsuits against schools — at least 190, according to the men’s advocacy group Title IX for All. Typically, victims’ complaints about mishandled Title IX cases have gone to the Office for Civil Rights, while complaints from accused men land in civil court. In a ruling involving Brown University last year, a Rhode Island judge noted: “A student is not entitled to a perfect disciplinary process, and it is not the court’s role to be an appeals court for Brown’s disciplinary decisions.” At the time, no circuit courts had weighed in, but there were so many cases it seemed one would have to. This September, the Sixth Circuit Court of Appeals did so, finding that the University of Cincinnati violated an accused student’s due-process rights by failing to let him cross-examine his accuser.
With funding from right-wing donors like the Charles Koch Institute, FIRE has often aligned with conservative sensibilities. But a number of academics and lawyers, among them a group of feminist Harvard law professors (including Gertner) who released a public letter in August calling for reform, have cited reasons Title IX policies should concern progressives, too: that overly broad definitions of misconduct, encompassing most drunken encounters, threaten to erode distinctions between consensual and nonconsensual sex; that anecdotal evidence (there’s little hard data available) suggests men of color are disproportionately punished; that a conservative administration could co-opt the campus-rape debate to further its own aims; or that perceptions of bias could trigger a backlash casting women as liars.
“I concede I’ve seen cases where it seems schools were taking shortcuts to justice,” says S. Daniel Carter, a longtime campus-safety expert who consults with colleges and universities about sexual misconduct. But schools that did so, he emphasizes, were violating policy or breaking the law. He points to a September 2017 study released by FIRE that found that most top schools fail to consistently ensure 10 safeguards it considers “fundamental elements of due process” — like providing adequate written notice of allegations and the need for impartial fact-finders. With the exception of two items on FIRE’s list — one calling for a presumption of innocence, which Carter believes violates Title IX’s requirement that adjudicators make no presumptions whatsoever — Carter says not only that he agrees with every principle but also that each is already required by Title IX, the Clery Act or the guidance letter.
In the case of Thomas Rossley, which Andrew Miltenberg joined when father and son decided to sue, the Rossleys contend that Drake violated some of these policies. The school’s acting dean was afforded equivalent speaking time as Thomas and his accuser — effectively doubling the amount of time allowed to make the case against Thomas, which the Rossleys argue is a violation of Office for Civil Rights guidelines. Although Drake’s Title IX coordinator noted in an affidavit that the only way the school could comply with Title IX was to waive the school’s requested time, the dean still spoke. “They basically put in writing: ‘We’re not going to comply with Title IX in this prosecution,’ ” Rossley says. (In a court filing, Drake denies violating any rules or procedures.)
Victims’ advocates say that cases like this illustrate that the problem isn’t the policy but rather schools’ failing to follow it. A situation where a school gave more time to one party than the other, says Alexandra Brodsky, a fellow at the National Women’s Law Center, would be “both a clear error by the school and points to a need for a more nuanced conversation about Title IX enforcement than ‘Is Title IX good or bad?’ ”
“For my entire career, I’ve seen the pendulum swing,” Carter says. For decades, schools followed “the path of least resistance,” he says, to the detriment of victims. More recently, some followed the same path to the disadvantage of the accused. Now that pattern of reaction and counterreaction is happening at the national level. “It’s not back and forth so much as it’s the same old failed system,” Carter says. “Who is it failing the most today?”
“It’s becoming, I don’t know if ‘circus’ is the right word,” says Laura L. Dunn, the executive director of the national victims’ rights group SurvJustice, but “it’s so legally complex that it’s not an easy thing to step into.” School officials are being named in individual lawsuits, so fewer agree to serve on Title IX panels; self-identified victims increasingly need lawyers of their own, because they risk being sued. Advocates on both sides suspect that schools are hedging their bets as they adjudicate, fearing both lawsuits and Office for Civil Rights sanctions.
In the past six months, two different professional attorneys’ associations have reviewed campus sexual-misconduct policy, and a third’s assessment is underway. They’ve come to different conclusions — one proposing higher standards of proof, another access to all evidence for accused students. The American Bar Association task force’s recommendations led to disputes even within the A.B.A. “I don’t think either side of this issue has advocates that are completely imagining problems,” says Cohn, who admits that no proposed solutions — including FIRE’s — come without costs to either side. “There isn’t a perfect, utopian answer to the problem.”
But under the Trump administration, these complexities are being cast largely as a matter of overregulation. Secretary DeVos, who has argued that local authorities and parents should have greater control over education than the federal government, seems to have taken a similar approach with Title IX. When she had one of her first official conversations about Title IX last April, it wasn’t with national experts on either side, but rather with a combative Republican state representative, Earl Ehrhart of Georgia, who has argued that Title IX enables rampant false allegations and that schools have no business investigating sexual assault. Ehrhart came away from his meeting gratified that DeVos seemed to agree with him on the limited role federal authorities should play. “She’s placing this back where it belongs,” he told me, “in the purview of the states.”
In January 2016, Representative Ehrhart, a former chairman of the American Legislative Exchange Council, which drafts model bills for conservative state legislators, decided, after hearing from the distraught mother of an accused student, to make Georgia the testing ground for challenging the “dear colleague letter.” A conservative with a penchant for bomb-throwing who has been lampooned by a Georgia reporter for delivering “Wagnerian” pronouncements, he began with what he called his “Georgia Tech hearing.” At the time, Georgia Tech had a mandatory-expulsion policy for students found responsible for rape, and The Atlanta Journal-Constitution found that it had expelled or suspended more students for sexual misconduct than any other Georgia state school. It also then used the controversial single-investigator model. Ehrhart, as chairman of Georgia’s House Subcommittee on Appropriations for Higher Education, wielded his financial authority like a weapon, effectively denying Georgia Tech funds to expand its libraries and warning other colleges to be more concerned about losing his support than that of the Office for Civil Rights. “If you don’t protect the students of this state with due process,” he said, “don’t come looking for money — period.” Some victims’ advocates believe he leveraged his role again in pushing the state’s Board of Regents to overhaul its sexual-misconduct procedures. The board announced new rules, including banning the single-investigator model, which went into effect in mid-2016.
That April, Ehrhart and his wife, represented by Miltenberg, sued the Department of Education, challenging the dear colleague letter on the claim that Ehrhart’s stepson, a Georgia Tech student, could “be wrongly accused and found responsible.” Then, early this year, Ehrhart proposed a bill, H.B. 51, which initially mandated that any campus sexual-assault report be forwarded to the police, with or without the complainant’s consent, and forbade schools to take final disciplinary action for any possible felony until there was a conviction or a no-contest plea.
The complexity around campus sexual misconduct has led observers from diverse political backgrounds to call for turning the whole matter over to the police. In a forthcoming law-review article, Brodsky notes that since 2013, at least six states and Congress have considered bills that included some form of law-enforcement reporting. Some mandated that schools refer complaints regardless of victims’ wishes; Congress considered a bill that prevented colleges from proceeding with Title IX processes until the police were at least notified, or in some cases, until a conviction was obtained. But no state bill before H.B. 51 took such an extreme approach — or so flagrantly contradicted federal law. And because state bills cannot override federal law, H.B. 51 seemed intended to force a court challenge to the dear colleague letter.
That, Ehrhart acknowledged, was the point. When we met in Atlanta in March, over Chick-fil-A sandwiches, he said he hoped “Georgia will hang a light on the problem such that the O.C.R., the D.O.E., will be put in a position: ‘Here’s a state statutory enactment that’s 180 degrees different from the old guidance letters. What are we going to do?’ ” Given the Trump administration’s signaling its distance from the dear colleague letter, he wagered that if H.B. 51 passed, the new Office for Civil Rights wouldn’t withdraw federal funds. Then other states would see that they could challenge the letter without repercussion and would follow suit.
The H.B. 51 fight was ugly. Hundreds of student protesters went to the state’s Capitol, where legislators challenged women seeking to testify about their assaults during a preliminary hearing. Ehrhart reprimanded one group of victims, saying: “If you feel triggered, trigger somewhere else.” Men’s rights activists showed up to lobby, at times targeting individual activists. They speculated on social media that one student organizer was a “pretty little liar” and brought to the Capitol a man suspended for having assaulted another.
The backlash Ehrhart mobilized created collateral casualties of its own. In his Georgia Tech hearing, Ehrhart read aloud a letter from the mother of a man expelled after being found responsible for rape. The expelled man had sued, and while his accuser wasn’t a defendant, her name and identifying details were in court documents then available to the public. It was a threat that her attorney, Lisa Anderson, who represents victims pro bono as executive director of Atlanta Women for Equality, feared was a new tactic: essentially outing women who lodged Title IX complaints.
There were threads about her case on the school’s Reddit page; riding a bus across campus, she sat in stricken silence as two students discussed it and decided she had probably made it up. Sidelined by panic attacks, she withdrew from most classes by the end of the semester, and though she tried to return last fall, she ended up leaving again and was hospitalized for a week after becoming suicidal. Her G.P.A. slipped so low that she told me she fears that she can’t transfer elsewhere, and that her only chance to graduate is to wait for the current crop of Georgia Tech students to cycle out.
At Kennesaw State University, one woman found that as the Georgia debate around Title IX grew, her case was caught up in the furor. According to her complaint, early one morning in February 2016, she was raped by a male friend, when consensual fooling around ended in nonconsensual intercourse that she explicitly refused. At first, she told me, she thought her friend had merely “disrespected” her clear line. She let him spend the night, and in the morning they ate breakfast, making plans to meet later. The man didn’t call, and the woman, troubled, talked to friends, who told her she was describing rape. Her mother took her to the hospital and the police, and school officials were informed. K.S.U. started an investigation. (The man denied that they had intercourse.)
But over the summer, as the new Board of Regents policy went into effect, the woman claimed the tone shifted. In her last interview, she says, investigators asked whether she was calling the situation rape because the man hadn’t called. Nonetheless, they found him responsible and recommended a two-semester suspension. (The man’s attorney, Lisa Wells, said the K.S.U. office fell out of touch for nearly five months, leading her client to believe the matter had been dropped.)
In the lead-up to a planned hearing in October 2016, the man argued that the investigation had been biased and hadn’t adequately considered his evidence. He asked that his case be reheard under the new regents’ policy and requested a stay of his decision “until the enforceability of the 2011 dear colleague letter has been adjudicated” — suggesting that Ehrhart’s lawsuit might settle the point. The request for a stay was denied, but the school agreed to have an external reviewer assess the case. When they informed the woman, she received a list of new witnesses for the man’s defense; among them was Ehrhart.
“I had no clue who he was or what he could possibly know about somebody raping me,” she said. “As soon as Ehrhart’s name came up, everything went crazy, and they dropped any care they had for me.” As a representative of K.S.U.’s district, Ehrhart had substantial ties to the school. He co-owned a sprawling sports complex that partnered with the university, and when K.S.U. needed a new president in 2016, Ehrhart championed the appointment of the state’s conservative attorney general, Sam Olens, who served with Ehrhart on the board of a K.S.U. business accelerator.
In the fall of 2016, Lisa Anderson, who represents the woman in the K.S.U. case as well, began to notice that email records K.S.U. sent had redactions in the “cc” line — a third party being kept abreast of the case. After filing multiple records requests, Anderson found emails involving Ehrhart, Lisa Wells and Olens. In one, Ehrhart wrote to Olens: “This is the second of the absolutely ridiculous cases I was concerned about. I label this one ‘breakfast with a rapist’ made for TV absurdity.” He noted he was drafting new legislation to remove such “nonsense” cases from university jurisdiction and his belief that “with a new administration in D.C., the guidance letters are now garbage, and the threat of federal funding is off the table.” In closing, he appeared to request a specific outcome: “I also hope this case can be dealt with in an expeditious manner benefiting its absurdity.”
Olens forwarded the email to the K.S.U. Title IX coordinator. When an external reviewer’s report came back in early 2017 — around the same time Ehrhart introduced H.B. 51 — it reversed the initial decision. (Wells says Ehrhart’s emails could not have influenced the external reviewer’s findings because they weren’t forwarded to her. K.S.U. officials said they were unable to comment on a continuing matter.) When Anderson and the woman appealed in the spring and summer, a process that finally culminated in a hearing this October, the panel declared that both parties were equally credible, so it couldn’t find the man responsible. Even before the verdict, the woman had become so despondent that she decided to withdraw. Wells says her own client is suicidal.
Ehrhart’s bill ultimately failed to pass before the legislative session closed in March, staved off largely by the mobilization of student activists. But if he lost the battle, it would come to seem he had won the war. After DeVos rescinded the guidance letter, he was elated. “We’re back to pre-2011,” he told me. “In many ways, we’ve succeeded.”
“We in the advocacy community, who have been involved with Title IX for decades, understand this is nothing short of a catastrophe,” says Noreen Farrell, executive director of Equal Rights Advocates, which in 1977 was one of the first organizations to argue in court that sexual harassment violates Title IX. But the exact nature of that catastrophe is not yet clear. The language in the Office for Civil Rights’s rescission letter and interim guidance is vague enough to allow for different interpretations. It might forbid accusers to appeal. Ehrhart hopes for this but acknowledges that “they didn’t make it crystal clear.” A line criticizing the Obama administration’s failure to let schools rely on law enforcement might allow — or push — schools to relegate complaints to the police. The new Office for Civil Rights interim guidance allows schools to choose between the “preponderance” standard or the higher “clear and convincing,” which could open the floodgates to hundreds of students’ demanding their cases be reheard or bringing new lawsuits. DeVos’s comments have already been cited by a man suing the University of Vermont over his suspension for sexual harassment, noting in his lawsuit: “UVM’s procedures for adjudicating sexual-misconduct complaints is precisely the type of system referenced in DeVos’ statement.” (The university says it is “confident it has acted legally and appropriately.”)
Title IX practices may also start to diverge state to state. While advocates may refute Ehrhart’s suggestion that Title IX is now a state issue — unless Title IX and the Clery Act are overturned, state laws conflicting with them will be challenged in court — they concede that they can’t stop emboldened conservative legislatures from trying.
In the week after DeVos’s speech, a bill sped through California’s Legislature, codifying many of the procedural aspects of the 2011 guidance. Although Gov. Jerry Brown vetoed the bill, citing concerns about due process, Farrell predicted it would be just one among numerous state initiatives. At an October meeting of the State Innovation Exchange, a progressive legislative advisory group, there was discussion of potential Title IX legislation in Colorado, Maryland and Massachusetts; in November, a Massachusetts bill mandating better sexual-assault training for campus staff unanimously passed the State Senate.
Attorneys general will also take on a more active role, says Lizzie Ulmer, a member of the Democratic Attorneys General Association, which sent DeVos an open letter in July urging her not to rescind the guidance and has since held meetings to discuss how states can serve as a stopgap against federal changes. Already, Attorney General Andy Beshear of Kentucky has used his office to sue three state universities for concealing records related to sexual harassment or abuse allegations. “The lawsuits that we’re filing are now more critical than ever,” Beshear says. “If the Education Department is not going to be actively monitoring these investigations by our universities under Title IX, it’s going to take other leaders on the state level.” This could create a situation in which protections for students, on either side of an accusation, vary enormously depending where they live. “One thing we have to think about is it really does become a state jigsaw,” Dunn says. “We have a very polarized political debate, and I think states will come out all over the map.”
Calling campus sexual misconduct a state issue is a short step from calling it an issue of states’ rights. And that’s no accident, say advocates, many of whom have long warned that an attack on Title IX could enable similar attacks on Title VI, the 1964 Civil Rights Act clause that forbids racial discrimination in schools, on which Title IX was modeled. The case law around both is intertwined, Dunn says, and their fates are, too: “If you’re rolling back Title IX, the next thing you roll back is Title VI.”
It’s an argument that some conservatives are already making. Days after DeVos withdrew the guidance, The Wall Street Journal published an op-ed suggesting that she shouldn’t stop there but should also withdraw a 2014 guidance concerning the disproportionate suspension and expulsion of black and Hispanic students. The same week, the Federalist Society released a report, written in part by individuals who had been active in criticizing Title IX practices, charging that the Obama Department of Education had overreached on three grounds: the guidance on campus sexual misconduct; a 2016 letter, also under Title IX, mandating transgender students’ access to facilities that correspond with their identity; and the 2014 guidance over disparate suspensions of black and Hispanic students. Given that the first two guidance letters were withdrawn by the time the report was published, the next target seemed clear. The conservative think tank Center for Equal Opportunity, two of whose staff members helped write the report, published a blog post with the headline “Two Down, One to Go.”
One advocate, who asked to remain anonymous to describe a closed-door meeting with the Office for Civil Rights, said that Title VI had come up in conversation with Candice Jackson. “We’ve tried to approach them in good faith,” the advocate said, “and I think they’ve used it to unfortunately learn more of what they could undo.” In October, DeVos rescinded 72 additional Department of Education policies related to the civil rights of students with disabilities, an effort, the department said, to eliminate outdated guidance. A few weeks later, department officials met with a group of educators and advocates calling for the rescission of the third Department of Education guidance letter, on disproportionate discipline of students of color. Among them was the lead author of the section of the Federalist Society report calling for the letter’s rescission. And just before Thanksgiving, the department proposed revising its procedures for investigating school civil rights violations to no longer assess whether an individual reported incident could reveal more systemic discrimination, according to a draft document obtained by The Associated Press.
“This is about ending civil rights protections,” Dunn told me. “This is removing what we had a Civil War over, which really was limiting the states in their ability to violate the rights of individuals. The federal government is meant to be a civil rights check, and states have always retained tons of power to fight that check, but they’re trying to erode even that.”
This November, Equal Rights Advocates held the first leadership meeting of the Initiative to End Sexual Violence in Education, a new national network of attorneys and activists to defend Title IX that will train hundreds of new lawyers, establish a hotline to gather complaints and file suit either against schools failing to uphold Title IX rights or on behalf of those who might come under attack from the new Office for Civil Rights. “If the O.C.R. won’t defend Title IX,” Farrell says, “we will.”
This spring, Miltenberg’s phone rang again. On the line was another mother. “You’re not going to take our case,” she said. “You’re for the other side.”
Her daughter, a freshman at a college in upstate New York, said she had been raped during her first semester, after she was separated from friends at a Halloween party and a man she’d never met grabbed and forcibly kissed her. She said he repeatedly asked her to go to his room, and she repeatedly refused. Later, when she was drunk, he offered to help her find her friends, but he said he needed to stop by his dorm first. Once in his room, she said, he immediately undressed. The woman doesn’t remember exactly what happened next, but she found herself naked on his bed. Then he raped her. When she got up to leave, she said, he told her, “Now go back to your room and don’t hook up with anyone else tonight.”
Weeks later, when the woman was out at a local bar, she felt someone staring at her and saw the man again, standing alone and watching her. Over the course of the night, as she moved from room to room to evade him, he followed, ultimately accosting her on the dance floor. (The accused man denies this account and maintains that the sex was consensual.)
By most campus standards, it seemed like a strong case. The woman had text messages she sent friends the night of the rape, saying she needed help; a female friend of the accused man would testify that she stopped by his room and saw the woman there, looking terrified. The same friend said the man asked her to tell campus authorities that everything looked fine. And the woman went to law enforcement.
After she filed a Title IX complaint last December, the woman and her family moved quickly to comply with the office’s requests, pulling together documentation in the weeks before Christmas and participating in a Skype interview on Dec. 18. But after the woman took a medical leave of absence — she struggled after the assault and was beginning therapy — the school’s commitment seemed to flag. By late January, the woman and her family say, officials hadn’t contacted any of the witnesses she suggested, and the accused student wasn’t interviewed until mid-February. The family decided they needed an attorney of their own. But they found lawyer after lawyer who represented only the accused; no one would take their case.
Miltenberg’s partner warned him that taking the case would be career suicide. But over the previous few months, he had started telling fellow Title IX critics that he didn’t think the dear colleague letter should be summarily withdrawn; perhaps it merely needed to be amended. Far from his earlier suggestion that women who don’t want to involve the police shouldn’t report to schools, he began to believe there was no easy way out of requiring colleges to take action. The police are too overburdened, he said, and some cops too “hard-boiled,” to respond to campus sexual assault well. Miltenberg’s new opinions made him unpopular. “I’m left out of a lot of email chains and phone calls now, and I used to be the lead guy,” he says.
He instructed the family to copy him on their communications with the school. The college’s own investigator was a woman Miltenberg says he contended with in the past, when she aggressively defended schools from lawsuits brought by men. The school allowed the male student to withdraw voluntarily on the eve of his hearing — informing the woman that meant the case was closed. “In any case I’ve ever done, the first thing parents ask is: ‘Can we just pull him out?’ ” Miltenberg says. Uniformly, in his experience, schools said no: The process would proceed, with or without the accused, and with findings of responsibility put on his permanent record. (The school says cases like this would result in a notation on the student’s transcript.) Miltenberg took the case.
When he met with the woman and her family in early June, he was shaken. “It was the first time I’ve ever sat with someone who’s a victim, at least in this type of setting,” he says. “I’m used to hearing the other side in detail and trying to come up with the parts that don’t add up, or where the story doesn’t make sense.” When the woman sent him a diary she kept in the months after the rape — a stream-of-consciousness account of the aftermath of losing control of her body — Miltenberg was aghast. As he read the diary, he imagined the voice of his eldest daughter, the same age as his client, and felt like throwing up. “I read this and think, My God, what if this is what every woman who feels they’ve been sexually assaulted feels like?”
As the woman’s lawsuits begin, she is starting her sophomore year at another university far from her first school. When she notified the New York college, she says, officials seemed almost overjoyed to approve her transfer.
When DeVos rescinded the letter in September, Miltenberg released a statement that did not betray any doubts but instead stated that he was “encouraged” by the action. But when he elaborated to me, he sounded more conflicted. Although he was glad more people were talking about the issue, he said he was “having a bit of a crisis of conscience.” Over the months he had worked on the woman’s case, the conventional wisdom about campus sexual assault had changed, with greater public focus on concerns about due process. “And insanely, I’m one of the people, for better or worse, who had some impact on shifting the narrative.” At the same time, he worried that the rescission could lead to a reaction of its own. He had received nearly a dozen new cases — all decided in the weeks immediately surrounding DeVos’s speech — in which he believed the schools had meted out unduly harsh penalties to make “a political counter statement.” That prospect was as concerning to him as the school’s inaction on his female client’s case.
“There are real topics in this world that are zero-sum games,” he said; finding a balance between addressing sexual assault and ensuring due process didn’t need to be one. He found himself thinking that advocates on either side of the debate shared a sense of battlefield camaraderie, because only they saw what was really going on. “Sometimes you sit in this hearing and your heart breaks for both people,” he said. “Sometimes I walk out and think the whole thing is a [expletive]: terrible for him, terrible for her, terrible for the parents.” It would be disingenuous, he said, not to acknowledge the concerns of the other side: That if the process is broken, it’s broken at least as much for victims as the accused. That correction can become overcorrection in either direction. The pendulum swings both ways. It shouldn’t, he said, “but I don’t know how to stop it.”