The just-released Title IX regulations allow colleges to do away with crucial fact-finding mechanisms that are the very foundation for our system of justice.
The just-released Title IX regulations allow colleges to do away with crucial fact-finding mechanisms that are the very foundation for our system of justice.
A fter many delays, on Friday the White House approved and released the Department of Education’s sweeping changes to Title IX’s implementing regulations.
The final regulations, accompanied by hopeful claims that they will encourage victim reporting, are, by their own terms, designed to make it significantly easier for university and college administrators to remove or otherwise discipline allegedly problematic students and staff.
Although the bulk of the revisions are legally, morally, and practically understandable and justifiable, in a few discrete but important areas they threaten to tip the balance too far in favor of administrators and against the accused (or, in the Title IX language, the “respondents”), whom the regulations themselves accord a presumption of innocence. In so doing, they raise genuine questions over procedural fairness and the factual accuracy of campus “guilt” determinations — and the legitimacy of the potentially lifelong negative impacts that frequently ensue.
By permitting colleges and universities to trade due-process protections for administrative efficiency, the new regulations threaten to introduce a troubling laxness into the critical fact-finding mission. This could be bad news for the accused, their accusers, and the system as a whole.
Surveying the New Disciplinary Regulations
Title IX of the Education Amendments of 1972 is a landmark civil-rights law prohibiting discrimination based on sex in all education programs and activities receiving federal dollars, including through student loans. Covered institutions include colleges and universities, which must respond promptly and effectively to claims of sex discrimination lest they lose their federal funding, amounting to a financial death knell for most. Although schools are, of course, free in their codes to adopt processes that are more vigorous than those permitted under the new regulations, Title IX sets the floor.
As part of the just-released 1,561 pages constituting the notice of final rulemaking, Title IX will continue to cover quid pro quo, hostile environment, harassment, incidents of sexual assault, dating violence, domestic violence, and stalking. Added are additional forms of sex discrimination, including discrimination based on sex stereotypes and characteristics, gender identity, pregnancy or related conditions, and sexual orientation.
The Trump-era regulations required that, to be considered in violation, sexual harassment had to be severe and pervasive. The revised regulations, in contrast, require that harassing conduct be “subjectively and objectively offensive” and “severe or pervasive.” As a result, one “severe” instance of harassing conduct (that is, an act high in seriousness but lacking breadth) can give rise to a disciplinary action for sexual harassment.
To its credit, the Department of Education (DOE) withstood misguided calls to adopt a purely subjective “if I consider it harassment, then by definition it is harassment” test. Such a test would have a chilling effect on free expression, put institutions in the role of policing speech, and mean that a single statement on a sensitive topic that is “offensive” to one extraordinarily sensitive student could generate a sex-based harassment complaint.
Additionally, the revised regulations now require institutions to respond to allegations of sex discrimination occurring in buildings owned or controlled by officially recognized student organizations, such as fraternities and sororities.
Going forward, moreover, off-campus conduct occurring anywhere in the world involving two students is also actionable. The new regulations, therefore, now have an extra-territorial attribute: Jurisdiction is based on an individual’s status as an enrolled student rather than on the location of the alleged misconduct. Although some observers will disagree on the wisdom of these changes, these regulations focus largely on when campus administrators can mete out discipline. Of greater concern from a due-process perspective is the Department of Education’s decision to permit administrators to change how disciplinary issues are addressed.
Exchanging Due Process for Administrative Ease
Although the public can debate the policy justifications for this expansion of the regulations’ reach, the regulations’ procedural modifications to campus disciplinary proceedings are clear. The changes to Title IX, directionally heralding a return to the Obama-era approach, are explicitly crafted to widen the disciplinary net, lighten institutional burdens, and make it significantly easier for administrators to adjudicate accused students or faculty responsible for violating campus codes of conduct. The corresponding due-process implications, which have largely flown under the media radar, are substantial.
As is so often true of reforms driven by ideology and politics, the truth (or, as more relevant here, the most defensible outcome) lies somewhere in the middle between those who wish to enforce maximalist protections for the accused, on the one hand, and those who are committed to significantly curtailing the accused’s procedural rights and defenses in purported service of protecting abuse survivors, on the other.
The Single-Investigator Model
A prime example of a new regulation that threatens to undermine due process on campus is the reintroduction of the Obama-era “single investigator model.” The term itself is somewhat of a misnomer. The “investigator as ultimate decider” model would be more on point, as this model permits a school’s Title IX coordinator or investigator to concurrently serve as the sole decision-maker in a particular case.
Permitting campus administrators to, in effect, rule on or grade their own investigative work and determine the credibility of witnesses after they have already done so as part of the underlying investigation — which will strike most in the public as obviously unfair — fits squarely in the category of changes designed to ease administrative burdens. Considering how important the final decision-maker is to the fairness of the process, the accuracy of the factfinding, and the integrity and robustness of the final decision, this modification is the one that is most difficult to defend. Is it plausible to contend that entrusting the Title IX coordinator to grade his own work is compatible with an unbiased, unconflicted process? Setting aside the exceptionally unlikely scenario in which any rational defendant would voluntarily choose to have his prosecutor also serve as his judge, no American court, whether federal, state, or local, would ever tolerate such a system in the criminal justice or civil realm.
The functional importance of the fact-finder’s independence was, in fact, emphasized in 1780 by John Adams in the Massachusetts constitution’s “Declaration of Rights”: “It is the right of every citizen to be tried by judges as free, impartial, and independent as the lot of humanity will admit.”
To be sure, being dismissed from a school and getting prosecuted for a crime are not the same (though both can occur based on the same incident). But the collateral consequences are often quite similar. School discipline, far from being an ordinary or private matter, has a lasting impact that can follow a student, or staff member, for years to come.
Lower Standards of Proof
In addition to permitting the single-investigator model, the U.S. Department of Education’s amended regulations also create a default presumption that adjudications of responsibility will now be based on a lower standard of proof, the preponderance of the evidence (“more likely than not” — or “50 percent plus a feather”), rather than the previous and more demanding standard of clear and convincing evidence (“highly probable”). Many colleges and universities will be tempted to accept the DOE’s offer to deploy this lower standard of proof. That said, these institutions should also remain mindful that using a higher standard of proof will help ensure that their final decisions are, and will be viewed as, more robust and defensible.
No More Rights to a Live Hearing and to Cross-Examine Witnesses
Gone also are an accused’s rights to a live hearing and to cross-examine witnesses. The DOE’s argument is that permitting cross-examination may re-traumatize complainants, inject unnecessary antagonism into the system, discourage reporting of misconduct, and provide an unfair advantage to those with the means to hire attorneys. As any experienced practitioner can attest, the adversarial nature of contested proceedings and the undeniably unpleasant pressures they create can be traumatizing. Yet these pressures also lie at the heart of the search for the truth, particularly when witnesses offer diametrically opposite accounts.
The analysis is different, of course, when minor children are involved. But in the context of a fact finder grappling with high-stakes, conflicting claims made by adult witnesses, accusers, and accused, the decision to dispense with hearings and adversarial examinations (though in many cases it might further praiseworthy goals) is not as self-evidently prudent as the DOE would have the public believe. Institutions should, therefore, carefully consider whether the negatives of permitting live hearings and cross-examination, even in limited form, substantially outweigh the positives.
No More Right to Present Expert Witnesses
Although the revised regulations give schools the discretion to allow the parties to present expert witnesses, the schools are no longer required to do so. According to the DOE, “the use of expert witnesses may introduce delays without adding a meaningful benefit to the recipient’s investigation and resolution of the case.”
This objection can, of course, be lodged against almost all evidence either side wishes to introduce. Courtrooms echo with full-throated relevance-based objections that are swiftly ruled on by judges. Why, then, do we believe campus decision-makers are unable to evaluate and, when appropriate, reject evidence on the grounds of irrelevance (a term that, it must be noted, is explicitly defined)? Institutions should think twice before they accept the DOE’s invitation to adopt procedures that, at the outset, cut off all parties, including the alleged victim’s, ability to present potentially relevant evidence.
These substantive procedural changes are based in part on the laudable objectives of encouraging victim reporting, reducing unnecessary adversariality, and not retraumatizing complainants. But in practice, the changes also reflect the value judgment that it is more tolerable for potentially “innocent” students to be held responsible for school violations than it is for culpable students to evade punishment.
This policy approach is one regulators are certainly free to pursue and codify. But it would be disingenuous not to at least concede that it clashes with a principle of the American legal tradition. As the English jurist William Blackstone, who famously formulated what we now call “Blackstone’s Ratio,” put it: “It is better 100 guilty Persons should escape than that one innocent Person should suffer.”
Guaranteed Due Process for Some but Not for Others
Many of the groups vocally championing the new regulations’ shifting of power away from the accused and toward the campus prosecutors ironically are also some of the most outspoken proponents of limiting the ability of prosecutors and law enforcement to pursue actual criminal violations. (To their credit, however, at least the American Civil Liberties Union, which has advocated defunding the police, has also called out the new regulations’ threats to important due-process guarantees.)
And if the advocates’ concern truly is to ensure that due-process rights do not discourage on-campus victims from coming forward, why do those concerns not equally apply to victims of crime outside of the academic environment?
The Future of the Revised Regulations
Allegations of disciplinary-code violations (particularly ones that are sex-related) are serious business. Findings of guilt can result in expulsion, suspension, or diploma revocation. Such disciplinary sanctions predictably carry life-changing professional, academic, and reputational consequences. The proceedings resulting in such sanctions should never be, or be perceived as, a less-than-reliable rubber stamp. The stakes are far too high for both the accused (who deserve reliable fact-finding) and the victims (who deserve robust, defensible determinations of the factual guilt of their victimizers).
Experience teaches that swapping due process and impartiality in decision-making for administrative efficiency typically turns out to be a bad trade-off for all parties involved. The “single investigator” model under which those investigating the allegations and initiating charges can also determine the accused’s ultimate factual guilt, the move to a lower standard of proof for establishing violations, the removal of the accused’s right to a live hearing and cross-examination, and the elimination of the right to present expert witness testimony are four discrete areas that stand out as threatening to the truth-seeking process.
Schools have until August 1 of this year to comply with the new regulations. Even campus administrators who champion the new regulations should resist the siren song of administrative efficiency, keep an open mind, and be willing to forgo some of the “outs” the regulations offer when the results are not likely to match the ambition. Students, staff, survivors, and society in general deserve no less than the core values of fairness and rigor.
Editor’s note: This article has been updated since publication.