End the Bias in Campus Sexual-Misconduct Tribunals
Education Secretary Betsy DeVos and her advisers have made a remarkably good start at ending the Obama administration’s abuse of federal regulatory power to attack the due-process rights of university students accused of sexual assault. But the more important task—the crafting of Title IX regulations to ensure fair treatment for both parties in campus cases—is ahead.
Last September, DeVos publicly called for fairness to both sides in campus adjudications. About two weeks later, the Education Department withdrew the Title IX “guidance" that the Obama administration had imposed to specify guilt-presuming procedures for the nation’s colleges and universities to use. DeVos has also ended the Obama practice of turning every allegation of sexual harassment into a sweeping, publicized federal investigation of all allegations university-wide over the past three years.
But these actions will only begin to undo the damage done by the previous administration. And to date, DeVos has had little impact on the deeper problem of systematic discrimination by universities against the accused. (Almost all students accused of sexual assault are male.)
In this #MeToo era, it might seem counterintuitive to suggest that campus systems have prioritized the interests of accusers over the need to achieve a just outcome. But in the context of student-on-student accusations, at least, college campuses are unlike the workplace, due both to campus ideology and to the effects of the Obama administration mandates. In 2011, 2014, and 2015, the Education Department’s Office for Civil Rights (OCR) issued "guidance" documents in the name of interpreting Title IX that effectively required more than 7,000 universities and colleges to use specified, guilt-presuming procedures to respond to sexual misconduct allegations. Announced with no public notice or opportunity for comment, these decrees resulted in procedures that “lack the most basic elements of fairness and due process, are overwhelmingly stacked against the accused, and are in no way required by Title IX law or regulation,” as 28 Harvard law professors wrote in an eloquent indictment in 2014. More than 70 judges have issued rulings (some of them preliminary) against schools for violating accused students’ rights.
Most schools executed the Obama-era guidance so zealously as to be even more unfair to accused students than OCR explicitly required. But now virtually all have refused to implement provisions of the DeVos OCR's interim guidance. (After scouring the country, a trio of accusers’ rights organizations was able to find only one school—the University of Houston—that was even considering changing its campus adjudication policies along the lines that DeVos had proposed.) And the pattern of injustice, which continues unabated, will almost certainly go on indefinitely unless and until the federal government takes much more forceful corrective action than anything DeVos has done so far.
Fortunately, the education secretary may be preparing to do just that, and make campus Title IX proceedings far more just, through a necessarily protracted and complicated “notice and comment” rulemaking process that she announced last September. It is designed to produce by 2019 new regulations for enforcing Title IX that will seek fairness for both complainants and accused students.
DeVos has committed to a two-step process to create a fairer campus Title IX system. First, in September, OCR issued new "interim guidance" containing several promising policy changes. Among other components, the interim guidance tells schools to:
- avoid “sex stereotypes or generalizations” and give accused students detailed, timely written notice of the allegations against them;
- use the same standard of proof in sexual misconduct cases that “the school applies in other student misconduct cases,” reversing the Obama demand that schools use the lowest possible standard of proof in sexual misconduct cases, even if they use a higher standard in other disciplinary cases;
- ensure that the investigator(s) be “free of actual or reasonably perceived conflicts of interest and biases for or against any party,” which seemingly excludes Title IX coordinators (whose powers the Obama administration sought to expand greatly) from the adjudication process, a provision that the final rules should make explicit;
- produce a written report “summarizing the relevant exculpatory and inculpatory evidence," rather than simply looking for evidence that would support the accuser’s version of events.
Finally, the interim guidance placed “the burden . . . on the school—not on the parties—to gather sufficient evidence to reach a fair, impartial determination as to whether sexual misconduct has occurred.” While this wording strongly implied that the accused student was entitled to a presumption of innocence, final regulations should make that implication clear-cut.
As the Supreme Court has stressed, effective due-process protections in noncriminal cases are most critical when the impact and “risk of an erroneous deprivation” is great. Yet even these modest steps toward fairness drew frenzied denunciations from virtually every Democratic politician who has spoken publicly about them and a hostile or cool reaction from almost all university officials who have commented.
As a result, DeVos has not yet been able to change things very much on the ground.
Notice and Comment Rulemaking
DeVos foreshadowed more important, detailed, and lasting regulatory changes when she vowed in September that “we will launch a transparent notice-and-comment process to incorporate the insights of all parties in developing a better way,” as provided in the Administrative Procedure Act of 1946 (APA).
She stressed that just as one rape or one “aggressive act of harassment” is one too many, “one person denied due process is one too many.” The primary reference to due process for accused students in Obama-era OCR guidance, by contrast, was to caution that “steps to accord any due process rights do not restrict or unnecessarily delay the protections provided by Title IX to the complainant.”
DeVos has eschewed what she calls Obama’s “rule by letter” approach. “We want to build a rule that’s enduring and seen by all as fair,” a top DeVos aide explains. “It’s a steady, thoughtful process, not a rush.”
The DeVos OCR initially has focused on developing detailed proposed rules for campus disciplinary proceedings involving alleged student-on-student sexual misconduct. After being finalized, approved by DeVos, and reviewed by the Office of Management and Budget and other agencies, the proposed rules will be published in the coming months. Interested parties then would have several weeks to file public comments.
The APA requires that agencies such as OCR respond in detail to the comments, which could take months; make any appropriate revisions in the proposed rules; seek input on those from OMB, the Justice Department, and perhaps other agencies; and issue final rules.
Accusers’ rights groups doubtless will criticize any new regulations, and court challenges are inevitable. But the final rules will have the force of law unless and until provisions are struck down by the courts or overhauled by the next administration, in another protracted rulemaking, or (less likely) by Congress.
Proposed Procedural Rules for Campus Sex Cases
The final regulations seem likely to include all the promising elements (presumption of innocence, requirement to document exculpatory evidence, avoidance of sex stereotypes, notice of allegations, prohibition of conflicts of interest and bias, elimination of a separate, lower standard for sexual assault cases) contained (and implied) in the interim guidance. But the interim guidance omits three requirements—two of them endorsed by federal appeals courts—that are absolutely critical to fairness.
First, the regulations should require schools to tell both complainants and accused students at the outset of the process that they have a right to have a lawyer at their own expense, or another advocate, represent them at every stage of the process.
They also should require schools to give every complainant and accused student a hearing before a panel of impartial adjudicators, with a right to meaningful and non-disruptive direct cross-examination of all witnesses, including the opposing party, on all contested issues of fact. The questions may be asked by the party’s lawyer, or by another chosen advocate, except that a complainant who objects to a personal, face-to-face confrontation with an accused student’s lawyer or advocate has a right to answer his questions on video if she so requests.
(Many schools now forbid lawyers from cross-examining the complainant or other witnesses or even speaking on their client's behalf. These restrictions make it difficult for innocent students to present an effective defense.)
These changes would reverse the Obama-era OCR’s strong opposition to meaningful cross-examination of accusers, which the overwhelming majority of schools now prohibit.
That prohibition flouts both the Supreme Court’s description (quoting a legal scholar) of cross-examination as “the greatest legal engine ever invented for the discovery of truth” and the decision of the U.S. Court of Appeals for the Sixth Circuit, in a case filed by an accused student from the University of Cincinnati, recognizing that “cross-examination takes aim at credibility like no other procedural device.” The unanimous three-judge Sixth Circuit panel castigated the university for assuming that cross-examination only benefited the accused student: “In truth, the opportunity to question a witness and observe her demeanor while being questioned can be just as important to the trier of fact as it is to the accused.” That’s because “few procedures safeguard accuracy better than adversarial questioning.”
Second, the regulations must specify that procedures that are structurally unfair to either party—not just to the accuser—constitute gender discrimination under Title IX. From 2011 onwards, the Obama administration employed Title IX on behalf of a victims’ rights viewpoint, contending that campus policies it perceived as insufficiently tilted toward the interests of accusers constituted gender discrimination in violation of Title IX—even though not all complainants are victims and not all victims are female.
The logical corollary of this approach is that if a campus system that tilts too far in favor of the accused violates Title IX, a system that tilts too far in favor of accusers also constitutes gender discrimination. But the majority of courts that have addressed this issue have concluded (as a district judge in a case filed against Rider University recently did) that bias, even overwhelming structural bias, “in favor of the alleged victim of sexual assault . . . is not the equivalent of demonstrating bias against male students.” The more compelling view, which the regulations should adopt, is that of a unanimous three-judge panel of the U.S. Court of Appeals for the Second Circuit.
It refused in July 2016 to dismiss a student’s Title IX claim against Columbia University for anti-male discrimination. It ruled that a “university that adopts, even temporarily, a policy of bias favoring one sex over the other in a disciplinary dispute, doing so in order to avoid liability or bad publicity, has practiced sex discrimination, notwithstanding that the motive for the discrimination did not come from ingrained or permanent bias against that particular sex.”
Even assuming for the sake of argument that discrimination against accused students does not violate Title IX, an obscure provision of the Higher Education Amendments adopted by Congress in 1992 appears to provide an independent source of authority for Education Department regulations designed to ensure fairness in campus adjudications of sexual assault. This provision requires colleges and universities to adjudicate all accusations of student-on-student sexual assault as part of their disciplinary systems. And that seems a sufficient basis for Education Department regulations to ensure that the adjudications be fair.
Third, the rules should require colleges both to make public all materials used to train investigators and adjudicators in campus Title IX tribunals and to ensure that the training does not discriminate against either complainants or accused students, including by generalizing about truthfulness. Federal regulations have required training disciplinary panels in all Title IX cases, even though no such requirement exists for other campus disciplinary offenses. Almost all schools now cloak their training materials in secrecy, even from accused students. As we have reported, the materials currently used by many schools stack the deck against the accused by suggesting without a scientific foundation that false allegations of rape are very uncommon; that any internal inconsistencies in the complainant’s account or contradictions of other evidence should be attributed to “the effects of trauma”; and that rigorous questioning of complainants is forbidden as “blaming the victim.”
Beyond these three critical components, Title IX regulations that seek to ensure a fair process rather than a pre-conceived result must:
- Remind colleges that Title IX does not trump the Constitution’s protection of free speech or a professor’s right to academic freedom. Such a disclaimer would safeguard against notorious cases such as that of Northwestern University Professor Laura Kipnis, who— in the guise of policing “sexual harassment”—was subjected to a harrowing Title IX investigation for writing an article that criticized how Northwestern handled Title IX complaints.
- Specify that the notice of allegations that must be provided to accused students before they are asked to respond must include copies of any written complaint by the accuser or witness statements and a detailed written summary of any verbal complaint or witness statement.
- Accommodate criminal investigations by affording accused students a right to remain silent and requiring schools to defer campus proceedings for a reasonable time if so requested by police.
- Prevent investigators from also serving as adjudicators and prevent both from deciding appeals in the same case.
- Guarantee accused students a right to a meaningful appeal of any adverse finding for insufficient evidence, procedural violations, excessive sanctions, and newly discovered evidence.
- Permit schools to mediate between parties and help them settle cases on an informal basis (a practice forbidden by OCR since 2001).
- Reaffirm that OCR has no interest in limiting schools’ ability to provide counseling, medical, academic or housing accommodations, or other services to alleged victims of sexual misconduct.
The new regulations also should reverse one of the most troubling elements of the Obama-era guidance—a double-jeopardy requirement that schools with appeals processes (as virtually all do) must allow accusers to appeal not-guilty findings.
As could have been predicted, this provision has resulted in institutions using dubious reasons to overturn panel decisions in favor of accused students. Unlike the civil justice system, in most campus Title IX tribunals the accused student faces not only the accuser, but also a college employee of some type who functions as investigator or even de facto prosecutor, followed by an adjudicator trained with one-sided material. Forcing a student who overcomes all these obstacles to then obtain a second finding of innocence is deeply unfair.
The Need and Legal Justification for the Proposed Rules
“Any school that uses a system biased toward finding a student responsible for sexual misconduct . . . commits discrimination,” DeVos has said.
Congressional Democrats critical of DeVos, by contrast, too often appear to have viewed such bias as an irrelevant concern. In this pernicious framing—most recently offered by Rep. Jackie Speier (D-Calif.), the House Democrats’ point person on campus sexual assault policy—campuses need not much worry about fair procedures, since between 92 and 98 percent of accused students are guilty. Yet the studies referenced by Speier indicate that the evidence in more than half of allegations is ambiguous, demonstrating why in many cases, even a careful, unbiased, fair, professional fact-finding process cannot reliably separate the innocent from the guilty.
It’s undeniable that some schools, especially in cases involving allegations against high-profile athletes who bring in money to their schools, have made it difficult or impossible for student victims to achieve justice. Nonetheless, overwhelming evidence exists in the public record of campus procedures that have the effect, if not the intent, of denying accused students a fair opportunity to defend themselves. As Harvard Law professors Elizabeth Bartholet, Nancy Gertner, Janet Halley, and Jeannie Suk Gersen noted in a white paper titled “Fairness for All Students,” filed with OCR in August:
Definitions of sexual wrongdoing on college campuses are now seriously overbroad. They go way beyond accepted legal definitions of rape, sexual assault, and sexual harassment. They often include sexual conduct that is merely unwelcome, even if it does not create a hostile environment, even if the person accused had no way of knowing it was unwanted, and even if the accuser’s sense that it was unwelcome arose after the encounter. . . . The procedures for enforcing these definitions are frequently so unfair as to be truly shocking. . . . Title IX officers have reason to fear for their jobs if they hold a student not responsible or [fail to impose] a harshly punitive sanction.
The prevalence of discrimination against accused students has been detailed by myriad journalists and scholars as well as by our 2017 book, “The Campus Rape Frenzy,” and books by Laura Kipnis and Robert L. Shibley. The journalists include Emily Yoffe, Cathy Young, Ashe Schow, and Robby Soave. The scholars include the 24 Harvard law professors mentioned above; 16 Penn Law School professors who issued a similarly reasoned open letter; and law professors Aya Gruber, Tamara Lave Rice, R. Shep Melnick, and Ben Trachtenberg, who have written individually on the issue. The nation’s leading campus civil liberties group, the Foundation for Equal Rights in Education (FIRE), for several years has cautioned that the implementation of Title IX has threatened fair treatment for accused students.
Finally, schools should voluntarily distinguish among allegations of (1) violations of the criminal law as defined by the state where the campus is located; (2) sexual harassment as defined in these rules; and (3) any lesser form of sexual misconduct specified in the school policies. (For DeVos to make these distinctions mandatory would arguably conflict with existing Clery Act regulations.) As DeVos has said, many schools enforce “ambiguous and incredibly broad definitions of assault and harassment.” Trivializing what is a felony in all 50 states serves the interests of no one.
These proposed rules may strike many as too prescriptive for a conservative administration that has vowed to cut back on federal regulation. And we wish we could think of a better way to protect the constitutional rights of independent-minded college students and professors.
But we can’t. The courts, limited to case-by-case decisions, cannot do it on a broad scale. And Congress, never a champion of the rights of accused people, will not do it. Nor will the states.
The paradox is that nothing short of muscular federal regulation will stop our politically correct universities from trampling the liberty of students and faculty.