January fireworks will erupt in Congress when new Department of Education (DOED) Title IX rules come under review and debate. Title IX governs how sexual misconduct cases are handled on campuses that receive federal funds. The old rules, based on the 2011 dear colleague letter, are a legacy from Obama and feminism; that legacy has been rescinded, largely over concerns about its lack of due process.
Enacting the new Title IX regulation does not require a vote. But it will prompt a congressional ruckus that continues the culture clash engulfing America. Opponents will assume women are the victims of men, with the new rules favoring the latter. Advocates will argue that a return to due process benefits both women and men.
New Title IX benefits women
In a recent Inside Higher Education article, Professor of Political Theory Meg Mott commented on “the substantial powers the new rules grant to survivors.” Accusers have far more power to choose alternative paths of resolution. Under Obama-era guidelines,” accusers “had no choice in whether or not to report a case” once it was known. Faculty and staff were required to file an official report, even if the accuser objected.
The new guidelines allow for informal resolutions, such as mediation, if both parties agree; a full hearing remains an active option. In either case, the university must supply counseling and other support to those who wish it. This eliminates the earlier grotesque spectacle of women undergoing hearings against their will.
The 2011’s radically expanded definition of sexual harassment also inflicted harm on women; it included almost all sexual encounters — from brutal rape, to jokes and flirtation. Mott pointed to the effect of viewing everyday experiences as sexual abuse. “The definition of sexual harassment privileged their [women’s] fears over adult communication.” She concluded, these “elements of the old rules made it harder for survivors to heal.”
By contrast, the new definition is clear and reasonable; sexual harassment is unwelcome conduct on the basis of sex that is so severe and objectively offensive as to effectively deny a person equal access to school benefits.
The sticky issue of cross-examination
The right of an accused to cross-examine his accuser and witnesses during a hearing is a flash point of debate.
The 2011 dear colleague letter on sexual violence instructed colleges to believe an accuser, and urged them to refuse the right of cross-examination to an accused. In fact, some hearings were so cloistered that an accused did not know the exact charges against him.
Ostensibly, the Obama measures protected accusers from further victimization, and encouraged reports of abuse. Well-intentioned or not, they accomplished the opposite. The “believe the women” approach trivialized the role of evidence in justice; banning cross-examination made it extremely difficult to ascertain the truth. Sealed procedures only encouraged false accusations and a Star-Chamber environment, which cast doubt on every verdict rendered, including valid ones.
The new Title IX states, “the recipient's grievance procedure must provide for a live hearing. At the hearing, the decision-maker must permit each party to ask the other party and any witnesses all relevant questions...including those challenging credibility.” The DOED press release adds that schools must apply other “basic due process protections for students, including a presumption of innocence throughout the grievance process; written notice of allegations and an equal opportunity to review all evidence collected.”
Proponents of the 2011 guidelines will claim that “Trump’s Title IX” returns accusers to the 1950s when accusing women were grilled about their sexual histories, however irrelevant. In fact, it simply extends a trend of recent court decisions, which re-established reasonable due process in hearing. In September, for example, the 6th Circuit Court of Appeals ruled in Doe v. Baum that “due process requires cross-examination in circumstances like these because it is the greatest legal engine ever invented for uncovering the truth.”
The “circumstances” to which the court referred: a he-said she-said case that prompted a hearing at the University of Michigan. Because the witnesses split evenly along gender lines in backing the conflicting accounts, the investigator recommended dropping the case. In closed session and without further interviews, however, the university found the accuser to be “more credible.” Facing expulsion, although he was only 13.5 credits away from graduation, the accused withdrew from university. The flawed campus adjudication led to a lawsuit that prolonged resolution of the case — hardly a desirable outcome for anyone, including the accuser.
The court decision established that, when confronted by competing narratives, the college must allow cross-examination. But the propriety of doing so remains controversial.
New rules for sexual misconduct hearings are coming. It is not clear that colleges will enforce them, however. Attorney Margaret Valois, who advises students accused of sexual assault, believes “A lot [of colleges] will continue to do what they’ve been doing until they end up in court.” For lasting reform, she contends, “The climate’s going to have to change.” If it doesn't and colleges refuse to implement the new rules, they will be harming women.
Wendy McElroy is a research fellow at the Independent Institute and the author or editor of nine books on women’s issues, government, and liberty.