Betsy DeVos Formally Unveils New Title IX Rules: 3 Ways They Will Strengthen Due Process on Campus
Cross-examination, stricter definition of misconduct, and greater flexibility
The Education Department has officially released new rules on how to enforce Title IX, the federal statute that forbids sex and gender-based discrimination in public schools.
This guidance will replace an approach, established under the Obama administration, that threatened free expression on college campuses and due process rights for students accused of sexual misconduct. Unlike the Obama-era guidance, the DeVos policies operate in accordance with basic principles of fairness. They are a massive step forward. If colleges are going to be involved in the business of adjudicating sexual assault, this new approach is vastly preferable.
A draft of the new proposals was released in September; the final version differs slightly, according to an Education Department spokesperson familiar with the process.
The biggest change since the draft proposal is that the increasingly popular single-investigator model of sexual misconduct adjudication—in which a sole administrator was charged with investigating the allegation, preparing a report on the matter, and passing judgment—is no longer permitted. Universities will be required to provide a separate decision maker, either an individual or a group, to determine an accused student's guilt.
A less welcome development is the appeals provision: Under the new rules, both the accuser and the accused will still be able to appeal the outcome of a Title IX decision. Civil libertarians opposed this idea. In the criminal justice system, only the defendant can appeal a guilty verdict; holding an additional trial after a finding of innocence constitutes double jeopardy.
But in other important respects, the new rules are a vast improvement over what existed previously. Here are three ways the new DeVos rules will make campuses freer and fairer places:
1) They define sexual misconduct more narrowly. Under the previous system, administrators were obliged to investigate any unwanted conduct of a sexual nature, which is a fairly wide swath of behavior. Some officials even interpreted this to include mundane speech that happened to involve gender or sex. But the new guidance specifies that Title IX is only infringed when conduct is severe, pervasive, and objectively offensive. (Violence and quid pro quo arrangements are also prohibited.) An administrator with knowledge of a potential Title IX violation does not need to follow through with an investigation if the allegation does not satisfy these criteria.
2) The new rules mandate cross-examination. Previous guidance did not explicitly forbid cross-examination, but it heavily discouraged the practice due to concern that questioning an alleged sexual assault survivor would be re-traumatizing. The new rules state that neither the accuser nor the accused need to be physically present in the same room, but their attorneys—or support persons provided by the university—must be allowed to submit questions on their behalf for the other party to answer.
There are some exceptions. Neither party may ask questions pertaining to their previous sexual history with other partners. This is consistent with state and federal "rape shield" laws which also limit such questioning.
3) The new rules let colleges set their own evidentiary standards but require similar standards for non–Title IX adjudication. Currently, universities must adjudicate sexual misconduct under a preponderance-of-the-evidence standard: The accused is found guilty if there is 51 percent certainty that he or she is guilty. Henceforth, universities may use either this standard or the clear-and-convincing standard, which requires greater certainty. I am skeptical that many administrations will return to the higher standard of proof, which opens them up to criticism from feminist activists who think they aren't doing enough to punish rapists. However, the new rules stipulate that a university must use the same standard for Title IX as it does for other matters—even ones involving the faculty. If academic misconduct is adjudicated under a clear-and-convincing standard, sexual misconduct must be handled in such a manner as well. This could create pressure to adopt higher standards uniformly.
There are other boons for advocates of due process. The jurisdiction of Title IX will be limited to events that transpire on campus, or are properly described as school functions. The new rules also recognize differences between K-12 education and college: K-12 teachers, for instance, must initiate investigations if they become aware of sexual misconduct, whereas college professors are not necessarily on the hook—at the university level, misconduct must generally be reported to the Title IX office for an investigation to unfold.
These rules will undoubtedly infuriate the Title IX activist movement, which has worked tirelessly to strip accused students of fundamental due process protections in the name of combating the campus rape problem. NARAL, a pro-choice feminist organization, tweeted Thursday that "a new rule from Betsy DeVos would require universities to allow accused sexual abusers to cross-examine and re-traumatize their victims. This is absolutely sickening." This is misleading—the new rule only requires universities to allow the accused to question their accusers vis a vis an intermediary. Nevertheless, Rep. Joe Kennedy (D–Mass.) retweeted the comment, adding, "No survivor should be cross-examined by his or her accused rapist. Ever. Full stop." This is a curious statement; in the criminal justice system, an accused rapist who is representing himself already enjoys the right to question his accuser.
Reforming Title IX is largely a thankless task, given that those helped by these reforms—men accused of sexual misconduct—are an unsympathetic lot. Most of the people who are very invested in Title IX as an issue are victims' rights advocates who see any attempt to re-balance the scales of justice as a sexist attack. There's a tempting narrative here—"Trump administration changes law to hurt women"—that will undoubtedly fool many who are unfamiliar with the specifics of Obama-era Title IX abuse. Missing from this narrative is any acknowledgement of the fact that the previous Title IX guidance had created more problems than it solved: Hundreds of young men have filed lawsuits alleging breach of contract and due process violations. Universities found themselves between a rock and a hard place. They could ignore the federal government, and risk their public funding, or they could ignore students' rights, and risk going to court. This reality wasn't sustainable, and DeVos's administration deserves tremendous credit for taking some steps to address the problem.
It's a tough job, but someone had to do it.