That campus Title IX sexual-misconduct tribunals are unfair to accused students is all but a truism. Since 2011, when the Obama administration forced a guilt-presuming reinterpretation of the 1972 law, more than 100 colleges and universities have been on the losing side in lawsuits filed by accused students protesting their treatment.
The Department of Education is planning to issue new regulations addressing the relationship between Title IX and fair procedures in cases of alleged campus sexual assault. The draft regulations are still under review, but as reported in the New York Times, they would in many ways produce a fairer approach to accusations of sexual misconduct on campus. If implemented, they would address many of the concerns that federal and state judges across the country have raised about campus tribunals. Based on the published material and information from a source familiar with the departmental development of the new policy, three salutary aspects of the proposed regulations particularly stand out.
First, they would complete Education Secretary Betsy DeVos’s work to make transparent the training regimes for campus sexual-assault investigators and adjudicators that colleges and universities implemented after 2011. The few examples of training materials that have been made public (almost always through litigation) seem designed to ensure disciplinary panelists presume an accused student to be guilty. And the secrecy of these materials frustrates accused students’ ability to defend themselves. We wrote about the issue of Title IX training last November; since our article appeared, biased training played a major role in another university legal setback, after the University of Mississippi employed training materials suggesting that an accuser’s lying be interpreted as a sign that the accused is guilty.
Courts have responded skeptically to the secrecy preferred by schools for their training guidelines. In a decision from earlier this year, U.S. District Court Judge John J. McConnell Jr. of Providence ,an Obama nominee, rejected Johnson & Wales’s motion to dismiss an accused student’s lawsuit against the university by citing “the fact that [the student] asked for training material during the appeals process and it wasn’t obtained or given to him.”
DeVos’s interim guidance in September 2017 cautioned schools not to use training materials “that apply sex stereotypes.” The draft regulations confirm this point and—in a major change—require schools to divulge their training materials, upon request, to an accused student or any other party to a Title IX complaint. Such transparency would provide a powerful incentive against unfair procedures.
Second, the proposed regulations clarify that under Title IX, schools must treat all parties fairly. Just as a university’s biased treatment of an accusing student could constitute gender discrimination, so too could biased treatment of the accused student. This would be a welcome change from the Obama-era approach, which was geared almost exclusively toward helping accusers. One of the clearest explanations of why this change would matter came from Judge T. S. Ellis III of Virginia in a ruling against Marymount University. He noted that in evaluating an equity law, biased adjudication procedures “may well run afoul of Title IX” by “depriving students accused of sexual assault of the investigative and adjudicative tools necessary to clear their names.” The process must determine which (if either) of the students is the victim, rather than presuming from the start that the accusing student is.
Finally, the draft regulations require schools that hold hearings to provide for at least some form of cross-examination. An accused student, at a minimum, must be allowed to submit questions for the accuser through a panel. This would be a major change from the Obama-era guidance, which “strongly” discouraged any cross-examination by accused students. It’s unclear, however, whether the draft regulations would—as they should—require panels to ask all relevant questions requested by the parties. This flaw should be fixed before the draft regulations become final. Lawsuits against several schools, including Cornell, have exposed instances of panels unfairly limiting witness questioning.
The draft regulations’ bigger flaw is their failure to require schools to give accused students the right to have a hearing. As drafted, the regulations would still allow schools to use a practice, encouraged by the Obama administration, called a single-investigator model, where one person, hired by the Title IX coordinator, acts as investigator, judge, and jury—interviewing the parties and witnesses and writing a report that pronounces guilt or innocence. The Sixth Circuit, in a lawsuit filed by a University of Cincinnati student, held that “cross-examination takes aim at credibility like no other procedural device.” As a result, “whatever the outcome, ‘the greatest legal engine ever invented for the discovery of truth’ will do what it is meant to”—help the adjudicator to determine credibility and render a decision.
Recent years have shown that in cases involving allegations against students , colleges in most circumstances—whether due to fear of bad publicity, criticism from campus or faculty activists, or well-meaning assumptions that all accusers must be believed in order to rectify the injustices of the past—will adjudicate Title IX complaints through one-sided procedures. If the new regulations give schools the opportunity to continue to bypass cross-examination and other procedural protections by simply abolishing hearings, they will abolish them and an unfair system will be entrenched.
The draft regulations are, nonetheless, an important step in the right direction. After their publication, expected this month, will come a period of around 60 days for public comment, to which the agency is required by law to respond. Whether the resulting public discussion will be at all productive remains an open question. The draft proposals have already received hyperbolic criticism from accusers’ rights groups and prominent Democratic legislators. House minority leader Nancy Pelosi claimed they would create “extraordinary new barriers to justice for survivors.” To New York senator Kirsten Gillibrand, the new regulations amount to siding with “predators.” There can be little doubt that if the regulations are adopted in their current form, Pelosi, Gillibrand, and their allies will pressure colleges to eliminate hearings in Title IX cases as a way of avoiding even the minimal due-process protections that come from indirect questioning of the accuser.