Note: the deadline to submit comment to the Department of Education is tomorrow, January 30th, 11:59 PM Eastern Time. If you care about due process for accused students and have not submitted your comment, please read the guide here. Our comment is below.

Department of Education
Notice of Proposed Rulemaking
Docket No. ED-2018-OCR-0064, RIN 1870–AA14

Title IX for All, a Dallas-based advocacy organization, was founded with a simple premise: that gender equity in education is a two-way street, and our institutions and culture should respond appropriately to the needs of both sexes. We appreciate the opportunity to comment on the proposed regulations.

Historically, Title IX implementations have focused on the under-representation of women in academia and women’s issues. Given that women have been the majority of graduates across all major degree levels since 1978], and given that policies regarding sexual misconduct have been accuser-focused (in practice female-focused) with the rights of respondents (men in most cases) regarded as secondary, it is appropriate that institutions approach Title IX policy more equitably than they have in the past. We are grateful to and applaud the current Department of Education administration for its courage, initiative, and integrity in doing so.

Title IX for All’s website features a database of lawsuits which we use to analyze trends in the litigation movement that has been sharply responding to school disciplinary outcomes since the issuance of the Department’s 2011 Dear Colleague Letter (DCL). While we have perspectives (mostly supportive, some critical) on all the changes proposed on November 16^th, 2019, we will refrain from speaking on the entirety of the proposed rules and instead focus on some of the most relevant sections.

The Role of Academia in Sex-Assault Cases

Our official position is that sexual assault and false accusations of sexual assault are not misconduct matters per se, but crimes. As such, it is the purview of the criminal justice system, rather than our educational institutions, to investigate and adjudicate these matters. Schools are better suited to instead assist law enforcement and provide 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.

That being said, when schools do investigate and adjudicate these matters, they should make every effort to emulate the spirit of fairness represented in the criminal justice system, even if they do not exactly mirror its procedures. 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.

The Dear Colleague Letter issued on April 4^th, 2011, while an advancement in terms of codifying and normalizing methods to address sexual violence, was in many ways disastrous for due process and the rights of the accused. This position is supported by demonstrable facts, including the following:

1. Litigation in behalf of students disciplined by schools for sexual misconduct has increased at an explosive rate since the issuance of the DCL. The rate of filings increases yearly, and the total number of lawsuits is easily in the hundreds.
2. Schools implementing the Obama-era DCL have found themselves to be the losers in a preponderance of lawsuits.
3. The three most common claims plaintiffs successfully sue schools for are Title IX, due process, and breach of contract. Of these three, schools most commonly lose on Title IX claims, demonstrating that courts have concluded that remarkable gender bias against male students exists in the grievance process. The rate of successful Title IX claims further indicates that the Obama-era DCL was insufficient in addressing gender equity.

The regulations proposed on November 16th, 2018 by the Department of Education are a necessary and significant step forward in creating a fairer process for all parties involved in school grievance processes. Our comments for specific sections are below.

§ 106.45(b)(3)(vii), Regarding Cross-Examination

We strongly agree with the necessity for live cross-examination by the respondent’s advisor during the grievance process. The central reason for this is simple: many accusations are “he said/she said” in nature; accounts differ between complainant and respondent and hard evidence is inconclusive or non-existent.

Recent judicial decisions support this. On 1/4/19, the California Court of Appeal ruled against the University of Southern California in Bryce Dixon v. Kegan Allee et al, B283406, emphasizing the necessity of cross examination:

We hold that when a student accused of sexual misconduct faces severe disciplinary sanctions, and the credibility of witnesses (whether the accusing student, other witnesses, or both) is central to the adjudication of the allegation, fundamental fairness requires, at a minimum, that the university provide a mechanism by which the accused may cross–examine those witnesses, directly or indirectly, at a hearing in which the witnesses appear in person or by other means (such as means provided by technology like videoconferencing) before a neutral adjudicator with the power independently to find facts and make credibility assessments.

The California Court of Appeal also ruled against USC four days later for the same reason in John Doe v. Ainsley Carey et al, B282164.

§ 106.30, Regarding Sexual Harassment

We strongly agree with the decision to codify the Davis standard to sexual harassment determinations, particularly sexual harassment that is so “severe, pervasive, and objectively offensive that it effectively denies a person equal access to the recipient’s education program or activity.”

Educational institutions must be careful to refrain from punishing petty one-time annoyances, especially when the offense is subjective. Such behavior does not rise to the level of severity or pervasiveness that would deny one’s access to education. Punishing non-harassing students for such behavior would deny their access to education, however, which is precisely the opposite of an equitable process.

In our culture there is no shortage of individuals eager (even regularly in pursuit) to subjectively take offense to minor, infrequent, objectively inoffensive behavior where offense is neither intended nor actually given. Compounding matters, this taking of offense is too often done with ulterior or disingenuous motives. Requiring school determinations to comply with the Davis standard returns us to a sense of integrity.

§ 106.30, Regarding Supportive Measures

We strongly agree with the definition of supportive measures as defined here:

Proposed § 106.30 defines “supportive measures” as non-disciplinary, non-punitive individualized services offered as appropriate, as reasonably available, and without fee or charge, to the complainant or the respondent before or after the filing of a formal complaint or where no formal complaint has been filed. Section 106.30 goes on to explain that such measures are designed to restore or preserve access to the recipient’s education program or activity, without unreasonably burdening the other party; protect the safety of all parties and the recipient’s educational environment; and deter sexual harassment. 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 [emphasis added].

Supportive measures are arguably the most appropriate purview of school administrations when responding to claims of sexual misconduct. Historically, supportive measures have focused on the needs of complainants while the needs of respondents have been secondary or ignored entirely. Yet respondents often have their own reasons to seek supportive measures to provide relief for an imminent threat or loss.

In numerous cases, for example, respondents have been assaulted by either the complainant or her acquaintances, and these events have been entirely ignored by school administrations when accommodations could have been made to protect them. In Doe v. Rollins College, for example, the respondent accused of sexual assault was assaulted by the boyfriend of the friend of her accuser, which Rollins ignored. Gulyas v. Appalachian State University et al involved mutual accusations of relationship violence.

Both cases involve violence perpetrated against the respondent, which should prompt a school administrator to offer supportive measures. In the former case the violence was ignored; in the latter the record of violence was actively suppressed by the school personnel who told the investigator to not submit it in her investigative report.

In effect, being a victim of a wrongful accusation of sexual misconduct is a form of harassment in and of itself. Often, respondents report that they are severely distraught, unable to focus on their coursework, or are unable to complete their coursework due to a lack of facility access. Therefore, to see an evenhanded proposal that provides supportive measures to both complainants and respondents is both necessary and welcome.

§ 106.45(B)(4)(I), Regarding the Standard of Evidence

Students found responsible for sexual assault often receive what is effectively an academic death penalty. Among other barriers to education access, they are quickly faced with expulsion, loss of scholarships, loss of professional relationships, and a black mark on their record preventing re-entry into academic institutions. As stated earlier, many rape accusations are he said / she said cases which rely on school administrator and panelists’ perceptions of students’ character and credibility. These perceptions can be fooled in more ways than one. Therefore, it is inappropriate that schools use a preponderance standard that determines guilt if a feather’s weight tips the scales.

This has been effectively proven in the courts, given that due process claims are one of the most successful claims by respondents-turned-plaintiffs. Reviewing and adjusting the overall threshold of required evidence is appropriate.

Accordingly, we strongly support the measure of raising the standard of evidence. It is interesting that the Department of Education proposes giving schools a choice on whether to adopt the preponderance of evidence or clear and convincing standard, allowing them to choose the preponderance standard only if they also use it for punishments that “do not involve sexual harassment but carry the same maximum disciplinary sanction.”

While the rule is thematically sound, in practice schools will naturally choose one of two paths:

1. They will adopt the higher clear and convincing standard, or
2. They will try to get away with continuing to use the preponderance standard in sexual misconduct deliberations while using a different standard in other matters, all the while paying lip service to the notion of consistency and compliance.

Given the disturbing behavior of numerous administrators involved in these lawsuits so far, the amount of secrecy that can be exploited in these proceedings, and the overall accuser-centered culture that has been built up in past decades, we highly suspect many schools will follow the second route.

The Department gives excellent reasons as to why schools should adopt a higher standard of evidence. Notably, while Title IX grievance processes bear similarities to civil litigation, school processes do not afford many of the same procedural protections found in civil litigation (e.g., attorney participation, rules of evidence such as those barring hearsay, rules of discovery, and so forth). This is one such example where schools need not mirror courts exactly in order to implement new and more equitable regulations.

We thank the Department of Education for its tremendous courage and integrity in this area, and we look forward to seeing the proposed rules take effect with provisions that provide a more equitable process for all.