On Proposed Title IX changes: Advocates See Needed Protections for the Accused, Critics See Increased Vulnerability for Victims

Seth Johnson
Associate Editor
Loyola University Chicago School of Law, JD 2020

On November 16, 2018, the Department of Education through its Office for Civil Rights, opened a series of proposed regulations for public comment. Interested parties anticipated the release of the regulations for some time, following the Department of Education’s 2017 rescission of the Obama administration’s 2011 “Dear Colleague”. The 2011 letter required educational institutions receiving federal funds to use a preponderance of the evidence standard in adjudicating institutional sexual assault proceedings, among other things. The recent proposal makes that standard permissive, rather than mandatory, while stressing that institutional proceedings must preserve a presumption of innocence on the part of the accused. Though many groups applaud the new proposals, others raise concerns that the proposals stand to harm victims of sexual assault.

A brief History of Title IX Enforcement

The law widely known as Title IX is part of a 1972 amendment to several 1960s era laws concerning federal funding of educational institutions. The law specifically prohibits sex discrimination in any educational program receiving federal funds. By the 1980s, the Department of Education’s Office for Civil Rights, the sub-agency statutorily authorized to withhold federal funds, began including sexual harassment of students by educational employees under the definition of sex discrimination. Eventually, both Supreme Court decisions and Office of Civil Rights regulations made educational institutions liable for sexual harassment committed by one student to another, where the institution failed to act diligently in responding. In 2001, the Office of Civil Rights formally stated that sexual assaults committed by students against other students were also a form of sex discrimination under the act, where institutions failed to properly respond.

Title IX Grievance Procedures in Sexual Assault Cases

In order to avoid losing funds by failing to adequately address sexual assaults, educational institutions developed a variety of procedures in the name of Title IX compliance. The Office of Civil Rights did not specifically impose a burden of proof requirement for these procedures until 2003, when a regional office imposed the preponderance of the evidence standard on Georgetown University. The Obama administration later cited this episode in defending its 2011 “Dear Colleague” letter imposing that standard nationwide. In general, grievance procedures for both sexual harassment and sexual assault under 2001 standards needed to meet certain general requirements. Schools needed to notice that the process exists, and how to initiate it. Any related investigations need to be reliable and impartial, providing that both parties be heard. Schools also needed to provide notice of the outcome of the process.

The 2011 “Dear Colleague” Letter

In addition to imposing a preponderance of the evidence standard and prohibiting a clear and convincing evidence, the 2011 “Dear Colleague” letter made other changes to the Title IX regulatory scheme. The letter “strongly discouraged” allowing accused parties from cross-examining the complainant directly. The letter encourages, but does not require the disclosure of “real or perceived” conflicts of interest. It requires that if an appeal is offered to one party, it must be offered to both parties. The result of this provision is that an accused person could be absolved in the initial proceeding, only to be subject to another proceeding involving an act that constitutes a criminal offense. Some argue that this violates the constitutional prohibition on double jeopardy, in principle, though not legally. The letter also does not require that grievance procedures provide both parties with equal access to evidence, only “similar” access to information used at the hearing.

Proposed New Regulations

The proposed regulations not only specifically rebuke provisions of the 2011 “Dear Colleague” letter, but would also impose entirely new and more specific requirements on Title IX grievance procedures. First, the new rules would alter the definition of sexual harassment under the act. In addition to maintaining the standards set in previous regulations, the act specifically includes “quid pro quo” sexual harassment on the part of employees, and defines that sexual assault will be defined by the definition used in the Clery Act. Unlike past rules, the proposal requires that regardless of whether a formal complaint is filed in a sexual assault case, an educational institution is obligated to take steps to provide support for self-identified victims.

The most controversial provisions of the proposal concern the new requirements relating to how grievance procedures may be conducted. First, the rules require explicitly for the first time, that regardless of what process is used, there must be a presumption of innocence on the part of the accused, imposing the burden of proof on the educational institution. Hearings held by universities must have live hearings. Whereas prior rules allowed a Title IX employee to conduct the procedure entirely by him or herself, the new rules explicitly prohibit a single-investigator model from being used. Whereas the 2011 “Dear Colleague” letter strongly discouraged allowing the accused to cross-examine the accuser, the new rules require that institutions allow just that, limited by principles in the federal rules of evidence applying to sexual assault cases. Accusers would have to have equal, not similar access to evidence. It is not only recommendation that there be no conflicts of interest, but not an imperative.

Reactions

Groups such as the American Civil Liberties Union (ACLU) responded quickly to the notice, arguing that the rules in practice threaten the safety of victims of sexual assault. The ACLU claimed that the new rules unfairly preference the accused over the accuser. Others point out that allowing schools to use a clear and convincing evidence standard in a non-criminal proceeding is unfair to accusers. Specifically, such critics argue that the purpose of Title IX is to ensure equal access to education, and such a standard is not equal, but rather favoring the accused. Other groups, ranging from law professors to libertarian organizations, applauded the proposal. Proponents point to cases such as a 2014 incident at Findley University in Ohio, where a grievance process offered virtually no opportunity for the accused to present any defense at all before he was expelled from school. The school patently ignored friendly witnesses present at the time of the offense and even took steps against them for offering to testify in support of the accused. As society continues to confront the serious problem of campus sexual assault, a consensus as to best practices remains elusive.

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