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Friday
Nov302018

Guest Post: New Regulations Dial Back Regulation of Higher Education but Increase Role of Counsel in Campus Title IX Procedures

The following guest post is from Michael Thad Allen. He is a former university professor and left a tenured position at a major research university (the Georgia Institute of Technology) to earn a law degree at Yale Law school. As a university professor, Michael Allen dedicated his scholarship to social justice, researching and writing about the Holocaust and civil rights. His book, The Business of Genocide (University of North Carolina Press) received the 2002 German Studies Association best book award. He is now the principal of Allen Law, LLC and represents both accused students as well as victims in student misconduct hearings at universities and in federal court. Turning to a career in Student Rights Law has enabled Attorney Allen not just to study civil rights but to defend them.

The Friday before most college students headed home for Thanksgiving break (November 16, 2018), the Office for Civil Rights of the Department of Education released new regulations governing Title IX.[1] A draft of the proposed regulations had been released at the end of August, and bits and pieces of their substance had been leaked over the course of the following weeks.[2]

Many of the new rules address due process requirements and are meant to make Title IX proceedings more reliable. This is controversial, but one would think it would be welcomed by both the advocates of victims and the advocates for the rights of the accused. 

The proposed rules will make it mandatory for colleges and universities to allow cross-examination in sexual misconduct cases. This is a cornerstone of the new regulations. Colleges and universities must now permit “each party to ask the other party or any witnesses all relevant questions and follow-up questions, including those challenging credibility.” The rule permits cross-examination through the parties’ advisors, who may be attorneys, but not by the parties directly. This is intended to avoid direct confrontation between the student making an accusation and their alleged attacker. The common practice of separating parties in different rooms during Title IX proceedings will also remain in place. 

The need for legal counsel in higher education will undoubtedly increase. Previously, campuses had the discretion to receive proposed questions submitted by students. They had no obligation to actually ask them and could disallow cross-examination entirely. Advisors supporting students (including attorneys) were not allowed to speak or pose questions of any kind.

As with all things Title IX, the proposed rules instantly ignited controversy. Congressman Joe Kennedy III of Massachusetts was prompted to exclaim that it was “absolutely sickening” to allow cross-examination by an “accused sexual abuser.”[3] Legal counsel to the Victim Rights Law Center condemned cross examination as “a horrible idea” that somehow gives rapists control over their victims.[4]

In addition to the cross-examination requirement, another long-standing flashpoint for controversy is the standard of proof. The new regulations leave in place a school’s discretion to decide Title IX cases under the “preponderance of the evidence” standard (i.e., whether it is “more likely than not” that the alleged conduct occurred). The Department of Education previously imposed this standard as a requirement in its Dear Colleague Letter of April 4, 2011. That was revoked in September 2017, and it will now stay revoked. But there is no new requirement to impose a higher burden of proof (like “clear and convincing evidence” or “beyond a reasonable doubt”).

In practice, however, this is unlikely to affect what happens during misconduct hearings.  Most colleges already used “preponderance” before, during, and after the 2011 guidance that required it. Few are likely to change now.

Victims-rights advocates have attacked the OCR for permitting the use higher standards of proof.[5] Advocates of “preponderance” argue that it is the right standard, because—if properly applied—it does not tip the scales to either party, whereas higher burdens of proof benefit only the accused.

The champions of “preponderance” have a point: Preponderance is the standard used in cases of sexual harassment, sexual assault, and other forms of discrimination throughout the civil justice system. Employers and their employees acting in an official capacity, including universities, can be sued in federal court under multiple anti-discrimination laws, including Title VI or Title VII of the Civil Rights Act.[6] What justifies deciding such cases under preponderance, but protecting accused students with a higher standard of proof?

Unfortunately, few seem to apply the same reasoning to the cross-examination requirement. Cross examination is a bedrock right for defendants (and plaintiffs) in anti-discrimination cases of all kinds, without exception, whether or not accusations involve sexual assault, harassment, or other horrendous behavior. Why should it be “absolutely sickening” to ensure a cross-examination right in campus Title IX proceedings (to both parties)? Why should we put alleged victims on college campuses beyond the reach of cross examination?  Our justice system does not allow victims’ allegations to go without scrutiny in any other context.

There are other important due process changes: the OCR emphasizes that the burden of proof rests squarely on the school, not on students. It is neither the victim’s responsibility to prove that a perpetrator committed a sexual assault, nor is it accused students’ burden to prove their innocence. The rules state explicitly that the accused, as is the norm throughout American jurisprudence, is presumed not responsible until shown otherwise.

Other proposed due process rules simply incorporate what had long been promulgated in the 2014 Obama-era implementing regulations to the Clery Act at 34 C.F.R. 688.46(k). Where those regulations merely imposed a reporting requirement, however, the new rules will hold colleges and universities to account for acting in conformity with them. Examples include the right to timely notice of any meeting or hearing and the requirement that schools provide the accused with evidence that will be used against him in advance, including exculpatory evidence.  See 34 C.F.R. 688.46(k)(3)(i)(B)(2-3).

Another important change is the OCR’s restricted definition of sexual harassment. The Obama-era Dear Colleague Letter defined sexual harassment broadly, as “unwelcome conduct of a sexual nature.” The OCR now adopts the judge-made standard developed in cases in which victims sued their schools under Title IX for “deliberate indifference.” Going forward, OCR will respond to victims’ complaints only where they allege 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.”  In addition, the OCR will continue to investigate allegations of sexual assault (as defined under the implementing regulations of the Clery Act (see 34 C.F.R. 688.46(a))).

In keeping with the trend toward dialing back federal oversight, the rules limit the scope of Title IX to campus activities or those “in a location or in a context where the recipient [of federal funds] owned the premises; exercised oversight, supervision, or discipline; or funded, sponsored, promoted, or endorsed the event or circumstance.” So, for example, fraternities and sororities will undoubtedly remain subject to Title IX. The OCR favorably cites a District of Kansas case finding that a Kansas State University fraternity was a university organization for the purposes of Title IX.[7] But student relationships in an off-campus bar or over summer vacation probably will not. Nor will assaults on campus by students against non-students or against students of other colleges.[8]

Nothing will prohibit colleges and universities from acting on such allegations, however, even if they are taken out of Title IX enforcement by the OCR. Universities such as Yale have already announced that they will continue to enforce their student sexual misconduct codes.[9] Student groups at Georgetown have demanded their university “denounce” Secretary DeVos and the new regulations.[10] Social movements and student pressure have been a driving force of stepped up prosecution of sexual misconduct on campus. This is another area in which, despite heated controversy over the proposed rules, little may change in practice—other than diminished recourse to the OCR. Institutions of higher education may prove to be unique in opposing the deregulation of their own industry.

The rules have been submitted to the Federal Register for publication. Once published in the Federal Registry, the proposed rules will be open for comment for 60 days, after which they will be promulgated with the force of law at 34 C.F.R. 106.

[1] https://www2.ed.gov/about/offices/list/ocr/docs/title-ix-nprm.pdf

[2] https://www.nytimes.com/2018/08/29/us/politics/devos-campus-sexual-assault.html

[3] https://twitter.com/RepJoeKennedy/status/1063161403824132096

[4] https://www.chronicle.com/article/What-You-Need-to-Know-About/245118

[5] https://www.vox.com/policy-and-politics/2018/11/16/18096736/betsy-devos-sexual-assault-harassment-title-ix what

[6] See ATIXA, TITLE IX & THE PREPONDERANCE OF THE EVIDENCE: A WHITE PAPER at 4.  Available at http://www.feministlawprofessors.com/wp-content/uploads/2017/07/Title-IX-Preponderance-White-Paper-signed-7.18.17-2.pdf

[7] Farmer v. Kansas State Univ., 2017 WL 980460, at * 8 (D. Kan. Mar. 14, 2017)

[8] See OCR’s proposed rules citing Doe v. Brown Univ., 896 F.3d 127, 132-33 (1st Cir. 2018)

[9] https://yaledailynews.com/blog/2018/11/16/yale-responds-to-devos-proposed-title-ix-regulations/

[10] https://georgetownvoice.com/2018/11/20/students-demand-university-action-in-light-of-proposed-title-ix-changes/

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