Changes to Universities’ Sexual Assault Tribunals May Be Here to Stay

On November 29, the 60-day public comment period opened for Title IX regulations proposed by U.S. Department of Education Secretary Betsy DeVos. The move was the latest, and most significant, step in DeVos’s efforts to encourage colleges and universities to create a more balanced adjudication system for resolving campus sexual assault allegations. Three features distinguish DeVos’s proposed regulations from the Title IX initiatives of her Obama-era predecessors. First, the proposed rule would redefine the relationship between the Education Department’s Office for Civil Rights (OCR) and the nation’s universities, in ways that give schools more flexibility to implement Title IX. The regulations would adopt the U.S. Supreme Court’s definition of sexual harassment found in Davis v. Monroe County Board of Education—behavior “that is so severe, pervasive, and objectively offensive that it effectively bars the victim’s access to an educational opportunity or benefit”—rather than the more expansive language of earlier OCR guidance. Second, the proposed regulations would no longer require schools to adjudicate some off-campus claims. Citing Title IX’s statutory language, the proposed regulations would apply to “discrimination under any education program or activity receiving Federal financial assistance.” However, in contrast to a version of the proposed rules leaked in August, the published proposal notes that courts have deemed fraternities as covered under Title IX, suggesting that universities would need to adjudicate incidents that occur even at off-campus fraternities. Third, the proposed regulations would reduce the number of employees whose knowledge of a sexual misconduct allegation would require the university to initiate an investigation. In theory, these are substantial changes—and they have generated ferocious criticism from Obama-era officials and accusers’ rights activists. In practice, however, they are likely to have scant effect. Any college president who confined her institution’s Title IX policies to these provisions would almost certainly face massive protests from campus activists. Many schools can, and likely will, define sexual harassment more broadly than Davis. They can, and likely will, designate many or even most employees as mandatory reporters. And schools can, and likely will, continue to adjudicate off-campus conduct. Indeed, recently a student sued Harvard after learning that the institution planned to adjudicate a sexual assault complaint against him—even though the complaint was filed by a non-student and involved an incident that occurred hundreds of miles away from campus, wholly unrelated to any Harvard-related activity. If the definitional items in the proposed rules will not likely change much in institutions’ decisions about whether to adjudicate sexual assault allegations, the proposed rule would dramatically alter how colleges adjudicate. Although Title IX long has required “equitable” grievance procedures, Clinton-era guidance provided relatively few specifics on how to implement this mandate. Obama-era guidance, on the other hand, envisioned schools prioritizing the OCR’s interpretation of Title IX over any “due process rights” for accused students. As a result, universities increasingly employed a “single-investigator” adjudication model, handling sexual assault claims without any hearing at all, relying instead on the judgment of a Title IX employee or a lawyer hired by the Title IX office. President Obama’s second-term OCR head, Catherine Lhamon, even deemed it “nonsense” to assert that courts have required direct cross-examination as part of due process protections for students accused of sexual assault. But, in fact, multiple federal courts have required it. The most prominent such decision, from the U.S. Court of Appeals for the Sixth Circuit in Doe v. Baum, made clear that “if a public university has to choose between competing narratives to resolve a case, the university must give the accused student or his agent an opportunity to cross-examine the accuser and adverse witnesses in the presence of a neutral fact-finder.” It is from this emerging body of law that DeVos’s proposed rule heavily draws. The regulations would require schools to allow cross-examination, conducted by a lawyer or advocate for each party. They would require schools to share with both sides evidence from the investigation. The rules would require schools to divulge to both parties the materials with which Title IX adjudicators are trained. And they would require schools to presume that the accused student is innocent. Although these changes would create a more equitable adjudication process, I am aware of no college or university with a Title IX code that currently includes all four of these provisions. Finally, unlike her predecessors, DeVos has chosen to issue new regulations, eschewing the Obama Administration’s preference for guidance documents issued without notice or public comment. President Obama’s OCR heads had threatened to pull federal funding from any school that did not implement the guidance, which gave it the same effect as if it were binding law. Making a Title IX change through a rulemaking will delay the implementation of the new policy, which now will not come into effect until well into DeVos’s third year in office. And the notice-and-comment period gives DeVos’s opponents an opportunity to mobilize against the proposed changes in a way that a comment-free guidance document does not provide. But opting for a new regulation rather than guidance has two major advantages for DeVos. First, in recent years, both progressive activists and Democratic legislators have championed an approach to Title IX that encourages more reporting of campus sexual assault allegations at the expense of fairer investigative and adjudicative procedures. It seems all but certain that the next Democratic administration will hope to restore President Obama’s Title IX principles. A guidance document issued by DeVos would lack lasting force; regulations, at the very least, would be more difficult to overturn. Perhaps more important, regulations likely would require adherence, albeit very reluctantly, from universities. Last year, DeVos issued interim Title IX guidance that invited, but not did require, schools to develop procedures with greater protections for the accused. Virtually no schools took her up on her offer; the leadership at many universities made clear they would change nothing unless forced to by Washington. Any university tempted to defy the new rule’s due process provisions, however, would risk not only adverse action from the OCR but a likely defeat in any Title IX lawsuit filed by an accused student. Schools, in short, will have little choice but to comply. Accusers’ rights organizations have called for flooding DeVos with comments; presumably they will also sue to block the new regulations if and when implemented. But, barring an unforeseen development, a dramatic shift in how universities handle Title IX tribunals looms