Under new rules pertaining to Title IX, the federal statute that forbids sex discrimination in education, the Education Department will clarify that school officials must adopt procedures that protect students from harassment while still guaranteeing due process rights for the accused.
That's according to a draft of the proposed rules obtained by Reason. Previously, I reported on some aspects of the new rules after speaking with an Education Department official. I have now read the full proposal: a 120-page document that is "intended to promote the purpose of Title IX by requiring recipients to address sexual harassment, assisting and protecting victims of sexual harassment and ensuring that due process protections are in place for individuals accused of sexual harassment."
The new rules make one thing abundantly clear: Those who claimed this move by Education Secretary Betsy DeVos represented some kind of attack on women were wildly off-base. You would have to actively prefer that Title IX adjudication be unfair for accused students in order to find significant fault with what the Education Department is about to do. And yet representatives of Know Your IX, an activist group that serves alleged victims of campus sexual assault, claimed that, having read the rules, they believe "they're worse than we could have imagined."
"These draft rules put the safety of students at risk," the group declared on Twitter.
This is an absurd mischaracterization of the document, which you can read for yourself here.
In summary, the new rules offer a workable definition of sexual harassment, explain the circumstances in which school officials are obligated to respond to accusations, and establish "procedural safeguard" to protect both the accuser and the accused.
The rules are explicit about the problems with the previous guidance, which was improperly issued without notice or public comment and is thus "sub-regulatory" in nature, meaning institutions can't be sure they actually have to follow it. With these new rules, DeVos is following proper procedure and actually asking stakeholders to give their opinion. (The copy of the rules I saw, for instance, had initially been sent to the Department of Health and Human Services for feedback.)
Sexual harassment is defined as unwanted sexual conduct that is so severe and pervasive that it effectively denies the victim the right to an equal education. But it is also defined as sexual assault, and as quid-pro-quo harassment, in which something is offered in exchange for sexual favors. Previous guidance "exceeded the text of the statute by requiring institutions to respond to conduct less severe than that proscribed by Title IX," the new rules state. The new rules also make clear that universities are only obliged to investigate possible Title IX infringements that are actually reported to a relevant administrator.
One of the most praiseworthy aspects of the proposal is the mandate to train Title IX adjudicators using unbiased materials that do not "rely on sex stereotypes and instead must promote impartial investigations." Title IX officials must also make training materials available for accused students to peruse, which means that underlying bias could be made more evident.
The new rules also state that universities may terminate the adjudication process if, having learned of an allegation, it is determined that "the conduct alleged by the complainant would not constitute sexual harassment." This could probably be stronger: Perhaps officials should be specifically directed not to continue investigating if no actual sexual harassment claim consistent with the definition outlined above has been stated.
During adjudication, both parties must have equal opportunity to present evidence, propose witnesses, and consult advisors of their choice. However, the universities may establish restrictions "regarding the extent to which the advisor may participate in the proceedings," as long as these restrictions are equitable. This strikes me as an area that could use further improvement, given the Sixth Circuit's recent finding that a representative of the accused should be able to question the accuser if the university thinks direct cross-examination would too traumatizing. It's not clear to me if the Education Department is saying that universities should be able to block representatives from doing so.
Indeed, the cross-examination aspect of the new rules is very interesting, and establishes an important right: The complainant and respondent must be afforded equal opportunity to pose questions to each other and to witnesses. But universities are not obligated to hold hearing at all; if the school uses an adjudication model that does not involve a hearing, then an effective substitute for due process will suffice. Universities "must permit each party to provide written questions for the investigator to ask the other party and witnesses." KC Johnson is concerned that this might actually prompt victims' rights activists to pressure colleges to abolish hearings entirely.
The new rules depart from previous guidance relating to the burden of proof: Schools are no longer obliged to use a preponderance-of-the-evidence standard, and may instead use a clear-and-convincing standard. But it is doubtful that many will do so.
The new rules also give universities more flexibility when it comes to appeals. The Obama administration's 2011 Title IX guidance required universities to permit both parties to appeal verdicts. This requirement would no longer be in place, and schools would be free to allow appeals for just the accused, for both parties, or for no one.
Those are just some highlights; there are many more details in the document. Its authors note that if implemented, these new rules would save about $300 or $400 million in compliance costs over the next 10 years. But the real benefit here isn't financial in nature: It's that students accused of sexual misconduct will no longer face adjudicatory policies that are stacked against them from the outset.
Contrary to what the activists have claimed, these rules make sensible and rather mild changes. It's ludicrous to asset that they go too far. It's more likely that they don't go far enough, and that the Education Departments attempt's to remedy due-process deficiencies on campus will fail to overcome the systemic biases of a bureaucratic system under constant pressure to always and automatically believe the victim.
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