Month: May 2020

All the important highlights from the 2,033-page document released by the Department of Education.

SAMANTHA HARRIS | 5.7.2020 9:58 AM

The Department of Education has finally released its new Title IX regulations, which both restore critical due process protections to campus sexual misconduct proceedings and make it harder for universities to sweep allegations of such misconduct under the rug.

If you’ve looked at the new regulations, you probably noticed that the document issued yesterday is more than 2,000 pages long. What are the essential things you need to know?

First, the mere fact that the final document is 2,033 pages long demonstrates just how seriously the Department of Education took the feedback it received from the more than 100,000 commenters who participated in the notice-and-comment process. The regulations themselves start on page 2,008, and the remainder of the document is devoted to addressing, in great detail, the comments received and the rationale for the ultimate decisions. This stands in stark contrast to the previous administration’s April 4, 2011 “Dear Colleague” letter, which—in 19 pages and with no public input whatsoever—led to the widespread dismantling of due process in campus sexual misconduct proceedings.

The new regulations address two broad categories of institutional obligations. The first is jurisdictional: When does a university have a responsibility, under Title IX, to take action? The second is substantive: When a university does take action, what must it do?

In terms of when a university must take action, the new regulations use a speech-protective definition of sexual harassment that mirrors the definition established by the Supreme Court in Davis v. Monroe County Board of Education (1999). Under the new rules, hostile environment sexual harassment is defined as “unwelcome conduct that a reasonable person would determine is so severe, pervasive, and objectively offensive that it effectively denies a person equal access to the school’s education program or activity.” This is a critically important provision because the previous administration had employed an overly broad definition—”any unwelcome conduct of a sexual nature”—that led students and faculty to be punished for speech and expression protected by the First Amendment. The regulations also make clear that Title IX prohibits physical sexual misconduct such as sexual assault, dating violence, domestic violence, and stalking.

The new regulations also make clear that universities must respond to any sexual harassment that takes place “in the school’s education program or activity.” This includes not only incidents that occur on school grounds, but also incidents that occur in contexts where the university has “substantial control,” including in buildings owned or controlled by recognized student organizations (such as fraternity houses.)

The regulations also contain a lot of information about how schools must conduct their Title IX grievance procedures. While Title IX has long required a “prompt and equitable” process, colleges’ handling of these cases in recent years has been anything but equitable. Ever since the 2011 Title IX Dear Colleague letter—which eliminated important procedural protections for the accused and ushered in an era of aggressive federal investigations that led schools to abandon even more due process protections—students have been forced to defend themselves in biased, inquisitorial proceedings, often with little to no information about what they allegedly did wrong.

Those days are now over. From the start of a proceeding, universities must now provide students with detailed notice about the allegations against them. Noting that “a party cannot be fairly expected to respond to allegations without the allegations being described prior to the expected response,” the regulations require universities to disclose, prior to any interview, “the identities of the parties involved in the incident, if known, the conduct allegedly constituting sexual harassment under [the regulations], and the date and location of the alleged incident, if known.” The regulations also provide that the notice “must include a statement that the respondent is presumed not responsible for the alleged conduct.” The presumption of innocence is, of course, one of the core principles of our justice system, but it is strikingly absent from campus policies: according to a recent survey by the Foundation for Individual Rights in Education (FIRE), where I am a senior fellow, more than two-thirds of the nation’s top universities do not explicitly guarantee accused students the presumption of innocence.

The regulations also require universities to allow both parties “to inspect and review any evidence obtained as part of the investigation that is directly related to the allegations raised in a formal complaint,” even if the university does not plan to rely on that evidence in making its determination. In the years since the Dear Colleague letter, more than 600 students accused of sexual misconduct have sued their universities alleging denials of due process, and suppression of exculpatory evidence is a common theme in these cases. This will make it much harder for universities to suppress either inculpatory or exculpatory evidence.

Transparency is a theme throughout the new regulations, which is of critical importance to ensuring a fair and unbiased process given universities’ penchant for secrecy. The regulations require not only that universities train Title IX investigators and adjudicators using materials that do not “rely on sex stereotypes” and that “promote impartial investigations and adjudications,” but also that a university “must make these training materials publicly available on its website.” Due process advocates have long known that universities rely on biased training materials, but the materials themselves have been extraordinarily hard to come by—universities have only produced them when legally forced to by litigation discovery or FOIA requests. Given that even the fairest process on paper is meaningless if the adjudicators are biased, the requirement of unbiased, publicly available training materials is one of the most important provisions of these new regulations.

The other game-changing provision is the requirement that universities adjudicate formal complaints of sexual misconduct using live hearings at which the parties, through their advisors, are permitted to conduct cross-examination. This means that universities can no longer use the “single investigator” model in which one person effectively serves as detective, prosecutor, judge, and jury—a model that has led to terrible abuses of power and that, even under the best of circumstances, rests a tremendous amount of authority in one person with, as one federal judge put it, “little effective power of review.” It also means that, in cases that so often turn entirely on credibility, the parties will have the benefit of cross-examination, which the Supreme Court has called “the greatest legal engine ever invented for the discovery of truth.” The regulations also make clear that cross-examination can only be done through an advisor, rather than by the parties themselves, out of concern for the possibility that “parties will feel traumatized by the prospect and reality of personal confrontation.”

It is difficult to understate the importance of these regulations for due process on campus. After a careful and lengthy rulemaking process, the Department of Education has taken meaningful steps to ensure that the laws it enforces are not used to violate students’ most fundamental rights.

Education Secretary Betsy DeVos. (Alex Brandon/AP)Education Secretary Betsy DeVos plans to release as early as Wednesday her much-anticipated final rules governing how schools must investigate sexual assault allegations, bolstering the rights of the accused, people familiar with the matter said.In its broad outlines, the sweeping regulation is unchanged from the proposed version released in 2018, though there were minor adjustments made throughout, according to one person familiar with the matter who was unauthorized to comment publicly and spoke on condition of anonymity.The rules will give universities and colleges a clear but controversial road map for handling emotionally charged conflicts that often pit one student against another. They replace less formal guidance, issued by the Obama administration, that was friendlier to those making allegations.

Under the new rules, college students accused of sexual assault and harassment must be given the right to a live hearing and the ability to cross-examine their accusers, much as the proposed rule directed. The rules also define sexual harassment narrowly, limiting it to conduct that is both severe and pervasive, not just one or the other.

In one change, however, the regulation explicitly adds dating violence and stalking as allegations that must be investigated.

In publishing the proposal in November 2018, DeVos said the new rules would restore balance in a system that, in her view, had been skewed in favor of the accusers. She said her approach would provide clarity and fairness for victims and those accused of wrongdoing.

The proposal came under intense fire from women’s rights groups and Democrats, who said it would allow assailants and schools to escape responsibility and make college campuses less safe for women.

DeVos had hoped to publish the rule late last year, but she was delayed in part by the need to respond to a crush of public comments — 124,196 in all, including a torrent of criticism from universities, advocacy groups, survivors of sexual assault and campus leaders. This spring’s coronavirus pandemic also contributed to a delayed announcement.

The administration worked to follow administrative procedures to the letter, bracing for a lawsuit. Opponents were already vowing to challenge it in court. The rules could also be undone or modified through legislation, should Democrats gain control of Congress next year.

One priority for the administration was making sure the regulation is in place in time to avoid the Congressional Review Act, which allows Congress to scrutinize and roll back recently issued rules.

The regulations stem from a 1972 law known as Title IX that bars sex discrimination at schools receiving federal funding. Most of the attention is on higher education, but the rules also apply to elementary and secondary schools.

Overall, the new regulation describes what constitutes sexual harassment or assault as part of Title IX enforcement, what triggers a school’s legal obligation to respond to allegations, and how a school must respond. Unlike less formal Obama-era guidance that DeVos rescinded, the new regulation was subject to public comment and, once finalized, will carry the force of law.

The final regulation made some changes from the proposal in its details.

It clarifies that universities are responsible for investigating incidents that take place in university-recognized fraternity or sorority houses located off-campus, or in off-campus apartments if the event is part of a university program, two people familiar with the matter said.

In another change, one said, the regulation will consider K-12 schools to be “on notice” of allegations, and therefore required to investigate, if any school employee has been informed of the allegations. That means a student who tells a bus driver or a teacher has effectively notified the district.

The rules come after years of rising pressure on universities to better respond to sexual assault allegations and other misconduct.

Supporters argue cross-examination is the most effective way of ferreting out the truth of what happened in a situation when students offer different recollections of the same event.

But advocates for sexual assault victims say the provision could subject survivors to more trauma and discourage them from coming forward. And universities complained that the requirement would turn their campuses into courtrooms.

Due process for me, and the benefit of every doubt — plus a media that provides cover and apology.If presumptive Democratic Party presidential nominee Joe Biden were forced to live by the standards he wants to set for college students accused of sexual misconduct, he would already have been presumed guilty, have been denied a genuine opportunity to refute the charges leveled against him by Tara Reade, and had his life ruined.

In 2011, the Obama DOJ’s “Dear Colleague” letter directed institutions of higher learning to adjudicate sexual-assault and misconduct cases under Title IX not by a “clear and convincing evidence” standard, but by a “preponderance of evidence.” The letter also “strongly” discouraged cross-examination of alleged victims — one of the fundamental methods of determining truth — because it “may be traumatic or intimidating” to the alleged victim. After Secretary of Education Betsy DeVos proposed new rules to reinstate some semblance of impartiality in the process, Biden, and a number of other Democrats, engaged in a smear campaign against her.

The former vice president never actually spelled out his specific criticisms of DeVos’s proposal. In a sycophantic 2017 Teen Vogue interview, in which Biden offered a number of rambling platitudes regarding sexual assault, he argued that DeVos is incentivizing assaults by proposing that colleges live by the traditional criteria of fairness. “Let me tell you,” he said, “it bothers me most if Secretary DeVos is going to really dumb down Title IX enforcement. The real message, the real frightening message you’re going to send out is, our culture says it’s OK.”

Biden is lucky that, in this case, media outlets chose to act in a professional manner, reporting and offering context to Reade’s allegations. Brett Kavanaugh was not so fortunate. Back then, journalists relayed every salacious, uncorroborated, and risible allegation thrown at them, leaving the Supreme Court nominee to prove his own innocence. The former vice president expects college students to live under the Kavanaugh standard while he enjoys his own.

Now, obviously Biden is to be judged by voters, not by a court or institutional tribunal. Reade hasn’t filed criminal charges. But guess what? Most students aren’t under criminal investigation either, and yet their collegiate careers and reputations can be forever ruined by the prejudiced process that was forced on colleges by Biden. The Foundation for Individual Rights in Education estimates that half of unfair-treatment lawsuits completed since 2013 have ended in the favor of the accused.

Every allegation of sexual assault should be taken seriously. But, as I’ve argued elsewhere, due process isn’t the opposite of justice, it is the prerequisite to it. Biden, whose campaign argues that he is falsely accused, should finally comprehend the importance of traditional tenets of justice. And no, not just for himself.

This is collateral damage that Democrats — who have spent the last few years championing the #MeToo movement — should be loath to incur. Democrats who subject Ms. Reade’s allegations to a level of scrutiny not widely applied to accusers in similar circumstances — such as Christine Blasey-Ford, who famously came forward during the confirmation of Justice Brett Kavanaugh for the Supreme Court to allege that he had sexually accosted her in high school — also open up past and future cases to reproachful disregard. Conservatives, like my colleague Bret Stephens, can see the plain gulf between how Democrats have approached sexual assault in politically advantageous cases versus Ms. Reade’s, and the evident hypocrisy threatens to discredit the entire enterprise.

Whether Biden sexually assaulted Tara Reade or not, a fact that will never be determined because Reade chose not to avail herself of the mechanism America uses to make such determinations, the Democrats, the pseudo-feminists and most importantly, Joseph Biden know a far harder truth: They are hypocrites. They are and were wrong. There must be due process for the accused.

KC Johnson and Stuart Taylor did the math.

If this long overdue change is sincere, the Democrats can show it by supporting the pending new Title IX regulations. The new rules are designed to require campuses to treat students accused of sexual misconduct with fairness and impartiality instead of effectively presuming guilt, as too many campuses currently do. Now is the ideal time for the Trump administration to release those regulations, spearheaded by Education Secretary Betsy DeVos.

It’s been a terrible struggle over the past decade for male college students to eke out what little opportunity they could to defend themselves against accusations wrapped in a litany of inane excuses that made everything, no matter what, proof of guilt. When the 2011 Dear Colleague Letter and its progeny were rescinded, activists cried that giving the accused a tenth of a chance to defend themselves was enabling rapists.

Can the same people who gave us whiplash in their pivot from Believe All Women to Take Women Seriously But Vigorously Investigate live with their flagrant hypocrisy by persisting in their disingenuous complaints about the new Title IX regs? As KC and Stuart note, “if this long overdue change is sincere,” they cannot. It’s a huge “if.”

But the head cheerleader, and the presidential nominee who has taken the hard position against giving male college students due process, is none other than the man who asks it for himself now. Is joe Biden “sincere”? Does Joe Biden have the integrity to admit he’s been dangerously wrong up to now, but he’s seen the light?

FACE, families Advocating for Campus Equality, sent Biden a letter putting the question to him.

We are hopeful your recent experience has made you realize that “sexual misconduct” is no longer just about sex. The “rules of engagement” for sexual misconduct are a moving target. Historically-acceptable hugs and genuine forms of non-sexual expressions of affection are no longer acceptable. Worse still, the consequences can be a swift end to education, career, and sometimes can even be life-ending. This affects not only those wrongfully disciplined, but also their mothers, fathers, siblings, grandparents, and spouses.

Children and young adults are not puppets to manipulate as props for the purpose of advancing political agendas. Yet that is today’s reality. Just like you have been accused of touching women in ways that cause them to “feel uncomfortable,” so too have many men, women, and LGBTQ students and professors been disciplined for the often subjective feelings of their accusers.

As a well-respected public figure, you are fortunate to have the opportunity to survive accusations of impropriety for your well-intended gestures, as well as an audience willing to forgive. Unfortunately, young students and faculty members only experience draconian repercussions for the same types of behaviors.

Joe Biden enjoys the support of his followers, his party and most of the media, who will do their part to seek out faults in Tara Reade’s accusations and history, ignoring the litany of excuses that have protected other accusers, from Christine Blasey-Ford to every woman on campus to every accuser on social media. And still Biden is constrained to defend against the accusations. What of the college sophomore, the 19-year-old male student who has neither the powerful friends and supporters nor the ability to air his denial on Morning Joe? If Biden demands his chance to deny guilt, would he demand the 19-year-old male student be presumed guilty?

Senator Biden, please, take off your political hat for just a moment, and open your eyes to what’s happening to innocent students and faculty who could be your sons, daughters, brothers or sisters – because, as you must now know, “doing the right thing” no longer protects you in this ‘accusation = guilt’ world.

Whether Biden sexually assaulted Tara Reade will forever be a mystery, but in a principled world, he would be presumed innocent because the burden is, must be, on the accuser to prove his guilt. The same thing is true of male college students accused of sexual misconduct, and it’s time for Biden to man up to the egregiously wrong position he’s taken for too long and concede that every accused must be afforded due process. Just like him.

Now is the moment, the “perfect storm,” to release the new Title IX regs that will, hopefully, give male college students a fighting chance to defend themselves from accusations. It may still be that neither Biden, nor his supporters, are sincere in their epiphany that due process matters, and their hypocrisy will then be as flagrant as possible. It will be out there for all to see.

But there will never be a better moment than now. Secretary DeVos, please release the new regs now.