Recently, Secretary of Education Betsy DeVos unveiled new rules for schools conducting sex-assault accusations against students. The rules will enter a period of public comment and review. This is one of several landmark developments in recent Title IX history and – while not perfect – is considered a significant step in the right direction in terms of human rights, including due process. We applaud her for her work.

We’re going to unpack the rules here in greater detail than what you have likely read anywhere else. Before we do that, I’ll give you a brief summary:

What the New Rules Get Right

1. The definition of sexual harassment aligns with the Supreme Court definition, reducing abusive false accusations by narrowing its definition
2. The potential standard of evidence in determining guilt is raised overall, providing greater due process protections
3. Accommodations (academic work extensions, housing changes, etc) will be provided to both accusers and the accused
4. School administrators cannot be held liable for misconduct they were not reasonably aware of
5. Administrators will be required to give accused students adequate time to prepare a defense
6. Cross-examination is no longer strongly discouraged but must be done carefully
7. Investigators, coordinators, and decision-makers must have no conflict of interest
8. A mandatory pseudo-discovery phase allows parties to review and make comment on the evidence before the completion of the investigation
9. Communication to accusers and to the accused about the process will be more timely and transparent
10. Schools will be required to document their processes more often, increasing their accountability
11. Schools must maintain records of the proceedings for 3+ years
12. The new rules mention due process 33 times

What the New Rules Lack or Get Wrong

• They are still a school solution to a criminal justice problem
• They don’t punish false accusers, and false accusers will likely continue to get off scot-free in most cases
• They still allow double jeopardy; accusers will still be able to “appeal” their accusation if school administrators didn’t conclude with a finding of guilt
• School response measures and liability for on-campus sexual assaults perpetrated upon visiting non-students should be improved

Title IX for All’s Stance

I’ll reiterate what has always been our stance regarding schools investigating sexual assault:

1. Sexual assault and false accusations of sexual assault are not “misconduct” matters, but crimes. As such, it is the purview of the criminal justice system, rather than our educational institutions, to investigate and adjudicate these matters. Lacking the resources, oversight, and training, schools are poor imitators of justice at best, and petty despots at worst – even (and sometimes especially) with the best of intentions. Schools are better suited to instead assist law enforcement and provide relief and accommodations for students, both accusers and accused, to ensure that their right to educational access is not infringed upon. Schools should never discourage accusers from seeking redress via the criminal justice system, nor seek to harass or facilitate the harassment of the accused.
2. If our education system absolutely must get involved in investigating and adjudicating these matters, they should make every effort to emulate the fairness of the criminal justice system. Among other things, this includes treating both parties equitably, respecting due process, providing timely and transparent communication to all parties, disciplining both sex-assaulters and false accusers, and following an investigatory and adjudicatory model that minimizes conflicts of interest.

A Brief Recap of Title IX’s Recent History

Everyone should be aware of these three events:

• 4/4/2011 – The Department of Education’s Office of Civil Rights (OCR) released their April 4, 2011, “Dear Colleague” letter (DCL), which eviscerated the due process rights of accused students. Many schools already used poor standards of evidence, but this policy codified, standardized, and mandated them. Notably, the Department of Education did not go through the normal process of giving the public opportunity for review and public comment; it was discussed behind closed doors among special interest groups, decided in the still of the night, and (with accompanying threats) rammed down the throats of schools upon release.
• 9/22/2017 – Under new leadership, the Department of Education withdraws the 2011 DCL, issuing “interim guidance” and promising a new rulemaking session, with an opportunity for public comment and review.
• 11/16/2018 – New rules to replace the Obama-era DCL are proposed, with a period for public comment and review to follow. The new rules are a much better attempt at balancing the rights of accusers and accused students and provides increased due process protections.

Our education system seems inescapably drawn to #2, so let’s evaluate the new rules to somehow make all this work. The new rules document is 149 pages. If you are feeling studious, feel free to read it here.  Unlike its critics, who were somehow able to read 149 pages and write a published article within 30 minutes of the document being released on Friday, I’ve actually read the document. That will be evident in my analysis below.

Obama-Era DCL: Despotically Implemented

Pages 1-16 mostly detail the history of Title IX, make generic statements about the benefits of providing an equitable environment for students, touch base on previous guidance, and describe problems with both the implementation and content of previous guidance. Here, DeVos correctly emphasizes the ethically void manner in which the Obama-era DCL was finalized, saying “the obligations set forth in previous guidance were issued without the benefit of notice and comment that would have permitted the public and all stakeholders to comment on the feasibility and effectiveness of the guidance.” It further quotes a letter from the Penn State Law School faculty on the importance of this process, who state:

Both the legislative process and notice-and-comment rulemaking are transparent, participatory processes that afford the opportunity for input from a diversity of viewpoints. That range of views is critical because this area implicates competing values, including privacy, safety, the functioning of the academic community, and the integrity of the educational process for both the victim and the accused, as well as the fundamental fairness of the disciplinary process…In addition, adherence to a rule-of-law standard would have resulted in procedures with greater legitimacy and buy-in from the universities subject to the resulting rules.

From my perspective, the Obama-era OCR’s refusal to provide public notice and opportunity to review voids their “guidance” mandate in its entirety. If the supporters of the Obama-era DCL ever cared about opposing fascist government actions and the values of democracy (as many claim to), they left their principles at home when the DCL was issued.

When critiquing the fallout from the Obama-era DLC, the document goes on to say that “over 200 students have filed lawsuits against colleges and universities alleging their school disciplined them for sexual misconduct without providing due process protections.”

There are few other places (if any) the Department could have gotten the 200 lawsuit stat other than here. The number is well over 200 now. As we are preparing to relaunch our legal database, we are performing a mass update of our data. We are at the 250 lawsuits mark, and will likely exceed that by a substantial margin.

Sexual Harassment: Alignment With the Supreme Court Definition

On page 17 DeVos begins to propose the new rules, starting with how to define sexual harassment. Substantial care is given across several pages to lay the foundation of authority by citing legal precedent, as seen in DeVos’ statement that “The Department believes that the administrative standards governing recipients’ responses to sexual harassment should be generally aligned with the standards developed by the Supreme Court.”

In one cited precedent, Davis v. Monroe County Board of Education, the Court decided (and SCOTUS has agreed) that:

A school can likewise be liable under Title IX based on sexual harassment by a student against a student but only if “the recipient is deliberately indifferent to known acts of student-on-student sexual harassment,” “the harasser is under the school’s disciplinary authority,” and “the behavior is so severe, pervasive, and objectively offensive that it denies its victims the equal access to education that Title IX is designed to protect.”

The last line is the most important, and under the new rules, schools must operate in accordance with that definition. Previously, many schools were operating with the presumption that any and all “unwelcome” sexual behavior was harassment that denies equal access to education.

Not all unwelcome sexual behavior (including speech) is severe or pervasive or objectively offensive, nor does all unwelcome sexual behavior (including speech) deny equal access to an education. This means that schools and accusers, some of whom may be operating with ulterior motives, will no longer have the free-for-all authority to define harassment however they want. Harassment means harassment, not an incidental annoyance, nor harmless neutral speech that an accuser wishes to transmute into something else with a magic-wand accusation because they don’t like the person for other reasons.

Title IX was put into law to ensure that “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.” It was not put in place to be a cudgel used by accusers for whom everything is subjectively offensive, or by accusers who act like the law or definitions of crimes are whatever they happen to conveniently believe it is at that particular moment. The new rules dial down the potential of abusive and false accusations by restricting the definition to actual harassment.

Clarification on Reporting Rules, and the Scope of Education Access

Here’s something that isn’t widely being talking about: the new rules also seek to clarify that school personnel who have the liability to take corrective measures against those accused of sexual misconduct in higher ed settings are school administrators, not teachers. Plausibly, this means if a teacher upon receiving an unsubstantiated report of harassment “jumps the gun” by presuming the guilt of an accused male student and tells him to leave class or not come to class, the teacher would be in violation of Title IX, since determining corrective action is within the purview of administrators.

The document further clarifies that the opposite is true in lower education: that teachers have more authority (and liability) to take corrective action since in such an environment they act in loco parentis (in the place of a parent) in many ways.

DeVos also clarifies per Santiago v. Puerto Rico that a school administrator is not at fault for failing to take corrective action if a teacher knows about potential misconduct and fails – along with the potential accuser – to report it to the administration.

The document also clarifies that the school can be responsible for investigating off-campus misconduct, saying “Whether conduct occurs within a recipient’s education program or activity does not necessarily depend on the geographic location of an incident.” Citing Farmer v. Kansas State University, the document states that this includes off-campus fraternities since a school “devotes significant resources to the promotion and oversight of fraternities through its websites, rules, and Office of Greek Affairs.”

Interestingly, an exception is provided: “There may be circumstances where the harassment occurs in a recipient’s program or activity, but the recipient’s response obligation is not triggered because the complainant was not participating in, or even attempting to participate in, the education programs or activities provided by that recipient.”

In other words, if a student from School A is sexually assaulted by students of School B while visiting School B, School B may not be liable under Title IX per se because the student was not seeking educational access to that university. The student could seek redress via their “Code of Student Conduct,” but it wouldn’t fall under Title IX per se.

I see a reason to change this to cover sexual assaults against non-students on a school’s own campus. Sexual assaulters tend to reoffend, and if School B receives a report of a sexual assault on campus then it is in the interests of their own students who are receiving educational access to the institution to investigate the matter before the assaulter reoffends.

The new rules add an additional measure to help accusers. If the school becomes aware of a potential incident but the potential victim does not wish to file a formal complaint, the school “must also at the same time give written notice to the complainant stating that the complainant can choose to file a formal complaint at a later time despite having declined to file a formal complaint at the time the supportive measures are offered.”

This is very likely fine, although it can be subject to abuse. For example, less-than-scrupulous accusers could seek to time an accusation for when it might cause the most destructive impact to the accused due to the accused being suspended as a consequence of the accusation. These times could include right before graduation, before reapplying for scholarships (when proof of continued enrollment must be provided to obtain a scholarship), and so forth.

That being said, accusers should generally have some leeway in deciding when to make a formal complaint. Some potential complainants are still trying to process whether what they experienced is a violation. Some victims may be wondering whether they want to just move on with their life, or plant their flag and fight. Regardless, it should always be accepted that:

1. Delays do cause potential evidence to decay or disappear, and we shouldn’t assume the guilt of the accused to compensate for this (as too many “victim’s advocates” do).
2. If a sexual assaulter is not apprehended, that person may victimize another while person while the earlier victim delays reporting.

DeVos also proposes a new section describing an extensive (but not exhaustive) list of “supportive measures” a school can take to assist accusers or the accused:

Supportive measures may include counseling, extensions of deadlines or other course-related adjustments, modifications of work or class schedules, campus escort services, mutual restrictions on contact between the parties, changes in work or housing locations, leaves of absence, increased security and monitoring of certain areas of the campus, and other similar measures.

This is one of the proper roles of the school in these matters: providing supportive measures (in addition to coordinating with the criminal justice system). The fact that the Department will also require schools to offer this support to accused students (rather than just to accusers) is important. Wrongly accused students would be able to request those accommodations to prevent their education from being disrupted or to prevent being harassed. These accommodations would also be customized to the individual and would be issued without additional fees.

Nothing prohibits a school from removing an accused student if the school determines there is an immediate threat to the safety of other students. In performing this, the school must conduct a safety and risk analysis and provide the accused the immediate notice and opportunity to respond.

The Grievance Process

The new rules require that “any individual designated by a recipient as a coordinator, investigator, or decision-maker not have a conflict of interest or bias for or against complainants or respondents generally or an individual complainant or respondent.” The bolded language is important. Does anyone involved in the administrative process presumptively label accusers “victims” and the accused “respondents”? If so, that’s evidence of bias. Are the Title IX Coordinator and the investigator married or in a relationship? We’ve seen that before, but that likely won’t fly under the new rules.

Jumping ahead briefly, page 146 further says that “the decision-maker…cannot be the same person as the Title IX  Coordinator or the investigator.” In other words, the same person cannot be judge, jury, attorney, and so forth.

Pages 41-43 require schools to carefully document the grievance process. Accusers and accused students must be given that documentation at the beginning of the complaint process. In addition, the accused student must be told what the charges are; the administrator cannot just summon the student into their office without the student being aware of the charges, and proceed to “go fishing.”

False Accusations

While the document mentions due process 33 times, it barely gives attention to false accusers per se, let alone requiring schools to punish them. This is all it says about false accusations:

It is also important for recipients to notify parties about any provisions in its code of conduct that prohibit knowingly making false statements or knowingly submitting false information during the grievance process so as to emphasize the recipients’ serious commitment to the truthseeking nature of the grievance process and to incentivize honest, candid participation in it.

In other words, when it comes to punishing false accusations, the Department of Education will generally adopt an “honor system”/”do your own thing at your school” approach. A school may punish false accusers of their own initiative (they overwhelmingly don’t), but the Department of Education has not required it, nor does it seem likely that they will.

Advisors

Many schools allow either party to have an advisor with them during the grievance process. Per the new rules, they must have equal opportunity to have an advisor present during the hearing.

Cross-Examination

Page 58 says:

At the hearing, the decision-maker must permit each party to ask the other party and any witnesses all relevant questions and follow-up questions, including those challenging credibility. Such cross-examination at a hearing must be conducted by the party’s advisor of choice. If a party does not have an advisor present at the hearing, the recipient must provide that party an advisor aligned with that party to conduct cross-examination.

In other words, the accused student does not personally cross-examine the accuser, but schools must give the opportunity for cross-examination. The document cites memorable and insightful quotes about cross-examination, such as Wigmore’s description of it as “the greatest legal engine ever invented for the discovery of truth” (California v. Green). Another quote: “Not only does cross-examination allow the accused to identify inconsistencies in the other side’s story, but it also gives the fact-finder an opportunity to assess a witness’s demeanor and determine who can be trusted” (Doe v. Baum).

This language would have never been quoted by the previous Dept. of Ed administration.

Pseudo-Discovery Phase

Page 54 says:

Prior to completion of the investigative report, the recipient must send to each party and the party’s advisor, if any, the evidence subject to inspection and review in an electronic format, such as a file-sharing platform, that restricts the parties and advisors from downloading or copying the evidence, and the parties shall have at least ten days to submit a written response, which the investigator will consider prior to completion of the investigative report.

Accused students have not generally had the opportunity to review or respond to all the evidence against them. This is agreat  improvement.

No More Blindsiding: Accused Students Now Have Time to Prepare a Defense

Page 57 would require schools to “provide to the party whose participation is invited or expected written notice of all hearings, investigative interviews, or other meetings with a party, with sufficient time for the party to prepare to participate in the proceeding.”

Too often, administrators have given accused students inadequate time to prepare a defense. They would spend a week or two talking to the accuser and conducting a preliminary investigation, get all their ducks in a row, and then ask the accused student to come into their office over the next 1-3 days (again, sometimes without telling them what they are accused of) to “ask them a few questions.”

All of a sudden, it turns into a hearing that is over before the student knows it, and the next week the student is expelled.

Standards of Evidence

The Obama-era DCL required schools to use the “preponderance of evidence” standard. In other words, if a school administrator thought an accused student was 50.01% likely to have committed the alleged misconduct, the student was deemed guilty and punished.

While a “clear and convincing” standard (~70% likelihood the alleged misconduct occurred) would be more appropriate, the new rules let schools “choose,” saying schools may “employ the preponderance of the evidence standard only if the recipient uses that standard for conduct code violations that do not involve sexual harassment but carry the same maximum disciplinary sanction.”

Since academic misconduct can be punished by expulsion and is often adjudicated by the clear and convincing standard, this means many schools will be forced to either raise their standard of evidence for sexual assault…or to lower the standard of evidence or the punishments for academic misconduct.

This raises more broad thematic questions about what a school should really be focusing on. Maybe it’s time to get back to focusing on academics.

Appeals

Per page 68, the new rules regarding appeals are the same as the old rules: schools may offer an appeal. If they do, they must offer the option to both parties. Title IX for All is not in favor of an accuser being allowed to appeal the findings, because this is essentially double-jeopardy.

Recordkeeping

DeVos will require schools to maintain records of the investigation, appeals, training materials, and so forth for a minimum of three years. This is necessary; we’ve seen cases where school administrators destroy or mysteriously “lose” records, even when those records are less than half a year old.

Much of the rest of the document talks about an extensive assortment of issues we don’t consider central to the topic at present. Examples include privacy laws (FERPA), other communication and documentation requirements, implications for speech codes, students with disabilities, religious matters, clarifications of language, technology needs, estimated costs of implementation, and so forth.

Will Schools Actually Respect Due Process?

Higher ed institutions are not known for their friendliness toward due process in this area. They are known for being stubbornly resistant to change, however. As Marybeth Sydor, Title IX Consultant at Nesenoff & Miltenberg, tweeted recently:

And that’s why attorneys exist.