Current Title IX Regulations Deny Accused Students Fundamental Rights
April is Consent Month at Oberlin. I think extremely highly of those who work in the Office of Equity, Diversity, and Inclusion and work to raise awareness about consent and sexual misconduct. However, while we are having these necessary conversations this month, Oberlin must confront the Orwellian underbelly of the national Title IX system: its enforcement.
Until a few months ago, Oberlin, like almost all educational institutions, was bound by the 2011 Obama-era “Dear Colleague” letter issued by the Department of Education’s Office of Civil Rights created in response to public backlash over college administrator sexual misconduct on campuses across the country. The letter recommended that to combat sexual misconduct, schools use the “preponderance of the evidence” standard — which states that the accusation is viable if the evidence is anywhere over 50 percent provable. The standard also enables accusers to appeal decisions and encourages schools to allow accusers to forgo cross-examination. In some cases, accusers can even forgo their own attendance at proceedings. If schools refrained from complying, they would have been found in violation of Title IX and the federal government could consequently and coercively withhold funding. The Obama administration likened its new interpretation to a silver bullet that would help end sexual assault and harassment on campuses.
Good intentions led to bad outcomes, however. The letter also created a system that a California Appeals Court Justice called a “kangaroo court,” and what a federal district court judge appointed by President Clinton called “a practice of railroading accused students.” Further, the interpretation was also made without a public announcement or a comment-and-response period, during which schools could offer feedback. The Obama administration’s sudden and drastic changes even prompted legal scholars of all political affliations to wonder if such a system is actually constitutional in the United States — and they are right to be puzzled. Not only did the interpretation mandate that schools adopt overly broad definitions of harassment, but the Department of Education had seemingly taken White-Out to the Bill of Rights.
While the First Amendment protects freedom of speech, the current Oberlin Title IX guidelines forbid certain crude language that has been explicitly upheld as constitutional by the courts. And while the Fifth Amendment protects the accused from double jeopardy, the 2011 regulations allow the accuser to appeal a decision. The Sixth Amendment, which protects the right of the accused to confront an accuser and the right to a public trial, was also disregarded by the Obama guidelines, since they mandated mandate strict confidentiality from the accused and allowed those hearing the case to decide whether cross-examination takes place.
This neglect of basic civil liberties is further compounded when you apply the preponderance of evidence standard. While the preponderance standard is applicable in civil cases, where all of the above liberties are left intact in real courtrooms, in Title IX cases, the judges are administrators who often have little to no legal training, with a defendant accused of quasi-criminal conduct; thus, the mere preponderance of the evidence standard is dangerously inappropriate.
As a result, over 80 schools using these Obama rules have wrongly suspended or expelled students or settled with students before trial, including a case at James Madison University, in which an Obama appointee to the Federal Court for the Western District of Virginia called the policies a violation of the Due Process Clause of the 14th Amendment.
What scares me is that Oberlin’s current policies are similar, if not identical, to those at schools with these “kangaroo courts.” Oberlin’s Title IX regulations should be devised with the primary goal of finding the truth, not of finding the accused guilty. For example, raising the burden of proof to a “clear and convincing” standard — such as one halfway between the preponderance and the criminal standard of beyond a reasonable doubt — instead of having the burden be over the mere 50 percent preponderance of evidence would make it harder for biases to sway a case. Allowing the accused to cross-examine any witnesses brought before them would also balance biases. In addition, providing the accuser and the accused with knowledgeable advisors would level the playing field for those who cannot afford outside guidance through the Kafkaesque system.
If Oberlin truly thinks that injustice anywhere is a threat to justice everywhere and wants to remain a beacon of liberalism, it cannot do so only when it is politically convenient. As students, we must demand that the committee crafting the new Title IX regulations — and the student senators and members of the General Faculty who have to approve them — reject any regulations that forgo essential liberties. Instituting proper due process rights and a clear and convincing standard of proof doesn’t just protect our endowed rights. It ensures justice for all.