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Expect the Title IX Inquisition

The Biden administration’s new rules for adjudicating campus sexual misconduct allegations favor an ‘inquisitorial’ approach over procedural fairness

by
KC Johnson
June 29, 2022
Antonio Sempere/Europa Press via Getty Images
Antonio Sempere/Europa Press via Getty Images
Antonio Sempere/Europa Press via Getty Images
Antonio Sempere/Europa Press via Getty Images

Last week, on the 50th anniversary of the passage of Title IX—the federal law banning sex-based discrimination in education—the Biden administration announced sweeping proposed regulations to address how colleges and universities adjudicate sexual misconduct allegations. The move wasn’t very surprising: During the 2020 campaign, Joe Biden had sharply criticized the existing regulations developed by former Education Secretary Betsy DeVos, which require colleges to conduct live hearings with cross-examination in campus Title IX cases.

Thursday’s announcement did, however, represent a further escalation in a policy and legal debate that has spanned more than a decade. Beginning in 2011, the Obama administration had expressed concern that far too many students, especially female undergraduates, were sexually assaulted while in college—which was undeniably true, though specific numbers remain a point of contention. It then argued that universities too often swept these allegations under the rug—which was sometimes true, especially when cases involved allegations against powerful university employees and high-profile athletes. In response, the administration issued guidance documents threatening to withhold federal funds unless universities changed their adjudication procedures by lowering the standard of proof for sexual misconduct allegations and by allowing accusers to appeal not-guilty findings.

Catherine Lhamon, who headed the Education Department’s Office for Civil Rights (OCR) from 2013 through 2016 (and is back in that role now), praised the Obama administration as the “first administration to call sexual violence a civil rights issue.” This vision of civil rights prioritized the rights of the accusers—who, it was feared, would not engage with the Title IX process at all if their university provided the accused with too many layers of procedural protection. As a 2014 guidance document from Lhamon explained, the administration wanted schools to “ensure that steps to accord any due process rights [to accused students] do not restrict or unnecessarily delay the protections provided by Title IX to the complainant.”

Universities around the country followed the new orders from Washington, expanding their Title IX bureaucracies and constraining the rights of accused students. Activists supplied additional pressure: Several newly formed groups championed the interests of campus accusers, and some, such as Know Your IX, had considerable influence on the overall debate. The number of allegations surged; so, too, did guilty findings. Moral panics have swept up the innocent as well as the guilty throughout American history, and this one was no different. Hundreds of students, many of whom presented strong claims of innocence, have since sued—and received a surprisingly sympathetic response in the courts.

A 2020 decision from the Sixth Circuit Court of Appeals best captured the general judicial concern with how the Obama administration’s Title IX policy had played out in practice. “Any number of federal constitutional and statutory provisions,” Judge Raymond Kethledge wrote, “reflect the proposition that, in this country, we determine guilt or innocence individually—rather than collectively, based on one’s identification with some demographic group. That principle has not always been perfectly realized in our Nation’s history, but as judges it is one that we take an oath to enforce.”

A well-intentioned policy initiative designed to ensure that survivors of sexual assault would not lose their access to education had wound up producing an entirely separate class of victims—students who were punished after dubious or false findings of guilt—amid procedures that one federal judge recently noted had been compared unfavorably to those of the “infamous English Star Chamber.”

This was the situation that DeVos inherited when she took over as education secretary. While she remains among the most polarizing of Donald Trump’s cabinet members, her handling of Title IX was an exception to the Trump administration’s more general pattern of sloppy, evidence-free rule-making. DeVos took nearly three years to develop new guidelines, which closely hued to existing court opinions. The resulting regulations, which have been in place since August 2020, survived five court challenges—from blue states, from professional and campus activist organizations, and even, disappointingly, from the ACLU.

After surveying the previous decade’s record, DeVos issued regulations that reimposed basic procedural fairness on colleges, which under the Obama administration’s policies had not been required to presume the innocence of accused students. Both the accused and accusing students received access to “any evidence obtained as part of the investigation that is directly related to the allegations raised in a formal complaint, including the evidence upon which the [college] does not intend to rely.” This was followed by an adjudication through live hearings with unbiased panelists, and in which each student would have the right, through a lawyer or advocate, to cross-examine adverse witnesses.

These procedural protections, it’s important to note, apply to both sides, and thus make it harder for colleges to sweep a survivor’s allegations under the rug. But in practice, given how far the Obama-era Title IX process had tilted the playing field in favor of the student filing the complaint, the imposition of fairer procedures has disproportionately benefited accused students. Clarifying the departure from Obama-era principles, the DeVos regulations reminded colleges that their mistreatment of either the accuser or the accused student could “constitute discrimination on the basis of sex under Title IX.”

Some legal academics, such as Harvard law professors Janet Halley and Jeannie Suk Gersen and University of San Francisco law professor Lara Bazelon, praised DeVos’ work in this area. All had previously expressed particular concern about how the procedural unfairness associated with Obama-era Title IX proceedings disproportionately harmed Black and other students of color. For the most part, however, the existing regulations generated strong pushback from liberal activists and unanimous condemnation from congressional Democrats. Few were more impassioned than former (and current) OCR head Lhamon, who charged that the DeVos regulations would take colleges “back to the bad old days, that predate my birth, when it was permissible to rape and sexually harass students with impunity.” Last year, after Biden nominated her to return to her OCR post and assume responsibility for developing new guidelines, Lhamon stood by her words.

The provision reminding colleges to respect the rights of accused students was removed ‘in its entirety,’ on grounds of redundancy.

Most of the 700 pages of proposed regulations that Lhamon’s office released last week address matters tangential to procedural concerns. Some deal with the scope and definition of harassment under Title IX—an interesting legal debate, but one with minimal practical consequences, since nearly every college voluntarily retained the broader definitions associated with Obama-era guidance. Still other sections deal with safeguarding LGBTQI+ students—a critical issue, although most colleges already have robust anti-discrimination protections. And still others discuss allegations against K-12 students—something of a Wild West in this area, but also a topic that involves minors and therefore different legal standards.

But the sections on campus sexual assault adjudications target the procedural protections from the DeVos regulations with almost surgical precision. Under the proposed Biden rules, accused students would lose the right to cross-examination entirely, unless their college is in a state where a court ruling requires otherwise. They would even lose the right to a live hearing; colleges can satisfy Title IX, according to the proposed guidelines, merely by providing at least two “meetings” between the accused student and an investigator. And instead of a mandate that colleges share evidence from the investigation, the regulations would permit schools to have the investigator initially provide only a “written investigative report that accurately summarizes” the “relevant” evidence. The regulations cite a variety of rationales—making the process easier for accusers, for example, and reducing the financial burden on colleges—for introducing these changes. The provision reminding colleges to respect the rights of accused students was removed “in its entirety,” on grounds of redundancy.

The proposed regulations thus pave the way for the return of the “single-investigator” model, pointing to comments from some college officials looking to increase the number of complaints filed by campus accusers. The Obama administration had encouraged this structure, in which a single person affiliated with the Title IX office serves the combined roles of investigator, prosecutor, judge, and jury in a criminal case. The existing regulations, however, forbid its use on grounds that a system in which accused students can’t see or hear the testimony of witnesses against them is fundamentally unfair. The absence of checks and balances is especially problematic in campus sexual assault adjudications, where colleges are often under enormous scrutiny and pressure—from student activists, the media, elements of the faculty, the federal government, and even occasionally powerful donors—to reach a particular result.

The regulations dubiously cite a handful of academic studies to maintain that an “inquisitorial” approach “is more likely to produce the truth than adversarial methods like cross-examination.” U.S. District Judge F. Dennis Saylor reached a contrary view after handling a lawsuit from a former Brandeis University student who had been found guilty under the single-investigator system. During a hearing on the case, he considered the procedures then used by the university as “closer to Salem 1792 than Boston 2015.” “If we had a time machine,” Saylor continued, “I would be interested in Justice Brandeis’ view of that procedure.”

Over the last several years, the protection of civil liberties has become an even more prominent platform for the Democratic Party. Progressive prosecutors have crusaded for procedural justice; activists and legislators have opposed the judicial revocation of rights (most recently in Dobbs v. Jackson Women’s Health Organization) at the hands of conservative courts. Yet here are proposed regulations that make wrongful findings more likely by revoking procedural rights that students in all 50 states currently enjoy—and the reaction from Democratic legislators has been universal praise. A representative response came from Sen. Patty Murray, D-Wash., who rejoiced, “On the #TitleIX anniversary, I can’t think of a more fitting tribute than the Biden Admin today announcing they’ll replace the Trump-DeVos rule that led to survivors being silenced & campus sexual assault being brushed under the rug. The new rule will help make campuses safer.”

Murray’s statement did not explain why taking away the right of accused students to see the evidence against them, or to be found guilty only after a hearing in which their lawyer could cross-examine adverse witnesses, would make campuses “safer.” In American politics, the rhetoric of prioritizing “victims’ rights” before a determination could be made about whether an accuser actually was a victim has long been associated with the extreme right, usually around racial issues. A decade ago, the Obama administration surprisingly embraced it as a means of encouraging more Title IX reports on campuses. The resurrection of this core hostility to civil liberties under a still more progressive administration remains one of the great ironies of the Title IX debate.

KC Johnson is professor of history at Brooklyn College and the CUNY Graduate Center.

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