Following a lengthy process for notice and comment, the U.S. Department of Education, under former Secretary Betsy DeVosBetsy DeVosGOP lawmakers urge Cardona against executive student loan wipeout More insidious power grab than one attempted Jan. 6? Betsy DeVos not running for Michigan governor MORE, adopted and published new regulations governing the investigation and adjudication of sexual assault allegations on campus. The regulations, which replaced prior guidance under Title IX of the Education Amendments of 1972, took effect in August 2020.
The new rule formally recognizes, for the first time, that sex harassment is a form of unlawful sex discrimination under Title IX. In the investigation and adjudication of sexual misconduct allegations on campus, it requires schools to give written notice of sexual misconduct allegations to both complainants and respondents; to afford equal opportunity to both parties to consult advisers of their choice; and to offer both parties an equal chance to submit and review evidence during an investigation. It mandates that the investigation and adjudication of sex harassment claims on campus be conducted by trained and impartial personnel, and that schools protect both parties’ privacy by requiring written consent before using medical or psychological treatment records during the misconduct process.
The rule allows schools to use either the preponderance or the clear and convincing evidence standard — the two most common standards used to adjudicate civil disputes — in deciding sexual misconduct cases, as long as they use the same standard to adjudicate formal sexual misconduct allegations involving employees. It requires schools to accord the accused party a presumption of innocence; to guarantee both parties the right to a live hearing and the right to cross-examination by their advisers; to apply “rape shield” protections against inappropriate introduction of either party’s prior sexual history; to provide both parties, in writing, with the ultimate finding in the case, and with the rationale for that finding; to offer both parties an equal opportunity to appeal the judgment; and to protect complainants, respondents and witnesses from retaliation for reporting sexual harassment or participating in a grievance process under Title IX.
These are the rules that presidential candidate Joe BidenJoe BidenUN meeting with US, France canceled over scheduling issue Schumer moves to break GOP blockade on Biden's State picks GOP Rep. Cawthorn likens vaccine mandates to 'modern-day segregation' MORE announced he would bring to a “quick end”; that, as president, Mr. Biden has ordered Secretary of Education Miguel CardonaMiguel CardonaAs COVID-19 drags on, it is more important than ever to assess K-12 students In the showdown over masks in K-12 schools, who will blink first? Education Department opens civil rights probe into Florida mask mandate ban MORE to revisit with a view toward “suspending, revising or rescinding”; and that 100 Democratic members of Congress, in a letter to Secretary Cardona, claim “gut protections for survivors of sexual violence” and “fly in the face of common decency.”
What on earth are they talking about?
Merely listing elements of the amended process, as above, does not begin to convey the importance of what the Education Department (yes, under Donald TrumpDonald TrumpUN meeting with US, France canceled over scheduling issue Trump sues NYT, Mary Trump over story on tax history McConnell, Shelby offer government funding bill without debt ceiling MORE) achieved here. From the period between (roughly) 2011 and 2017, when schools were being pressured to operate under “guidance” from the Obama Education Department, came hundreds of cases alleging the denial of basic rights to respondents in campus-based sexual misconduct proceedings, including the right to be notified in advance of the charges against them; the right to have an attorney or adviser participate in the proceedings; the right to access the evidence against them; the right to a hearing; the right to cross-examine the accuser; and the right to counterclaim and/or appeal an adverse judgment or the often serious sanctions attached to it.
Preliminary evidence indicates that a suspiciously large percentage of those accused, and found responsible, under the Obama-era guidelines were young men of color — young Black men in particular.
Unsurprisingly, hundreds of students found responsible under these profoundly unjust procedures brought their cases to court. And many of them won. Courts across the country, with both Republican and Democratic judges presiding, decided that colleges and universities had denied respondents due process (in the case of public institutions) or had broken the school’s contractual promises (in the case of private schools) to students by failing to provide fundamental fairness in investigating and adjudicating claims of sexual misconduct. By instantiating clear, equitable rules that affirm the rights of both parties while acknowledging the grave nature of allegations that can visit severe sanctions on those who are found liable, the new regulations make significant progress toward restoring fairness to the process of investigating and deciding these cases.
In place of serious engagement with these bedrock issues of fair process, opponents of the new regulations advance two clearly specious arguments.
First, critics charge that the new regulations have impermissibly narrowed the definition of sexual harassment. Their issue appears to be with the definition of “unwelcome conduct” under the rule, which affirms that “Title IX is designed to protect … any unwelcome conduct that a reasonable person would find so severe, pervasive and objectively offensive that it denies a person equal educational access.” (Responding to concerns about this part of the standard, the Department of Education clarified that sexual harassment under Title IX includes single acts of sexual assault.)
It’s difficult to see the flaw here. Do the critics mean to argue that students should be punished for sexual misconduct when the complaint does not allege conduct that is so serious and offensive as to deny the victim equal access to education? If memory serves, Title IX itself was designed to achieve the very goal named in the regulation — equal access to education for all. Exactly what standard would the critics propose to replace it?
Second, in their letter to Secretary Cardona, the aforementioned congressional hundred declared that the new regulations “overburden already-strained schools struggling amid a global pandemic.” But if colleges and universities are struggling to do justice when deciding sexual misconduct cases on campus, the answer cannot be to reclaim a set of prior rules that were fundamentally unfair and have been rejected by the courts. If schools lack the wherewithal to manage these often-difficult cases in a way that is fair to both parties, then the adjudication of such cases should be taken from them and moved to a better venue — not made easier to clear by depriving either party of fundamental rights.
Might the Title IX regulations issued by the DeVos Education Department be tweaked in ways that would further improve the process of investigating and adjudicating allegations of sexual misconduct on campus? Perhaps. But if fundamental fairness really is the goal, then Secretary Cardona, and the president who appointed him, must begin by acknowledging that the rules issued during the prior administration made substantial progress toward achieving it. No other approach would be just, or should be perceived to be just, by the victims of sexual harassment, by those accused of sexual misconduct, and by the colleges and universities charged with managing these cases.
Cynthia Ward is a professor of law at the William and Mary Law School, where she teaches courses in criminal law, sexual violence and domestic violence.