New rules governing sexual assault on college and university campuses will likely be made public very soon. Secretary of Education Betsy DeVosBetsy DeVosMnuchin, Pompeo mulled plan to remove Trump after Jan. 6: book Republicans look to education as winning issue after Virginia successes McAuliffe rolls out new ad hitting back at Youngkin on education MORE claims they will restore balance to a system she believes favors the accuser. Women’s rights organizations, colleges, and campus activists fear the new rules will discourage victims of sexual assault from coming forward — and make it virtually impossible for them to prevail if they do.
Sadly, the new regulations are likely to make a flawed system even worse.
The proposed regulations are based on Title IX, a 1972 law prohibiting “discrimination based on sex in education programs or activities that receive Federal financial assistance.”
In 2011, the Obama administration sent a “Dear Colleague” letter to higher education institutions, citing an often misunderstood report indicating that about one in five women were victims of “completed or attempted sexual assault while in college,” and outlining how its Department of Education would assess compliance with Title IX.
The letter required schools to make findings of sexual harassment and assault based on a preponderance of the evidence (i.e., a more likely than not test) rather than the more demanding “clear and convincing” standard then in use on many campuses. The letter also “strongly discourages” schools from permitting the parties personally to cross examine each other because it “may be traumatic or intimidating” to complainants.
Colleges and universities adopted grievance procedures in line with the letter’s requirements, hired additional staff to support students and deal with Title IX complaints, and ramped up related educational programming.
These efforts have satisfied no one. Some critics accuse colleges of sweeping allegations of sexual assault under the rug to protect their reputations and avoid alienating donors. Others accuse colleges of denying mostly male defendants some of their due process rights to satisfy campus activists.
For everyone, the stakes are high. To file a claim, students who may already have been traumatized by sexual assault must navigate a complicated investigatory process, often with little official support. Survivors (as they are known on campus and in the advocacy community) risk retaliation, or at least ostracism, by the accused and their friends, even though retaliation constitutes an independent violation of Title IX. Students who are accused of sexual assault may also face ostracism, often well before any formal resolution of the complaint against them. And a finding that they are responsible for sexual assault may result in expulsion, sometimes weeks or days before graduation.
Despite devoting substantial resources to Title IX programs, colleges and universities face periodic protests from students angry that they have not done more. Lawsuits have been brought by complainants who claim they were treated unfairly and, more frequently, by men who allege the proceedings were biased against them.
Secretary DeVos has waded into this debate on the side of the accused. In 2017, she rescinded the 2011 Dear Colleague guidance, criticizing it for creating a “failed system.”
Devos’s proposed regulations define harassment far more narrowly than the Dear Colleague letter. To be actionable, conduct can no longer be any “unwelcome conduct of a sexual nature”; it must be “unwelcome conduct on the basis of sex that is so severe, pervasive and objectively offensive that it effectively denies a person access to the school’s education program or activity.” The rules also permit schools to choose either the preponderance of the evidence standard or the more difficult clear and convincing standard, as long as schools use the same standard in other judicial proceedings carrying the same maximum penalty. The most controversial change will require schools to hold live hearings, with cross examination by attorneys permitted. If a student requests it, schools must provide an advisor to conduct cross examination.
To date, the draft regulations have attracted over 124,000 public comments. Most are sharply critical. Nonetheless, it appears the regulations will be promulgated largely intact (with one exception: unlike the draft regulations, the final rules may encompass sexual misconduct by students that occurs off campus).
In essence, the new regulations impose a one-size fits all process modeled on the court room. Colleges, however, are not courts, and the costs of such a judicialized process will be high. Wealthy students will be free to hire high-priced lawyers to represent them. Students without resources will have to depend on a college-appointed advisor. While faculty and staff could theoretically be trained to fill that role, few educators will feel equipped to do so against an experienced litigator. Colleges may feel compelled to hire a lawyer to represent any student without adequate representation. Colleges may also find it necessary to hire lawyers to oversee the proceedings, because few faculty or staff will feel competent to rule on the admissibility of questions objected to by one side or the other. And, of course, colleges will be paying their own lawyers to advise them throughout the process.
But the most enduring cost is likely to be the effect of an adversarial hearing on the filing of claims. Few victims of sexual assault will want to go through such a process. For them, due process for defendants may end up meaning no process at all.
Ironically, the new regulations may never go into effect. Colleges must be given a reasonable period to adopt the new procedures, and advocacy groups like Know Your IX have already threatened litigation to block implementation. Legislation that would do the same is pending in the House (though unlikely to pass the Senate). And, of course, the election of 2020 may result in a new set of players with a new set of policies.
Clearly, the existing system on college campuses is flawed. But efforts to address sexual assault, in our judgment, should be comprehensive: They should also address a civil court system that can be slow, costly, and, if the accused lacks resources, ultimately fruitless, and a criminal justice system in which — contrary to periodic claims of “guilt by accusation” — only a very small percentage of allegations result in felony convictions. The proposed changes to Title IX will not solve the problems on college campuses — and may well make matters worse.
Glenn C. Altschuler is the Thomas and Dorothy Litwin Professor of American Studies at Cornell University. He is the co-author (with Isaac Kramnick) of Cornell: A History, 1940-2015.
David Wippman is the President of Hamilton College.