New federal regulations on how to handle sexual misconduct on campuses will soon be issued by the U.S. Department of Education’s Office for Civil Rights. While some provisions are good, many will create greater confusion without improving the system.
The Obama administration was focused on the rights of victims of sexual misconduct under Title IX, the federal law barring sex discrimination in education. By contrast, the Trump administration is reshaping Title IX around the rights of the accused.
Among the positive changes are provisions that reconcile federal rules under two statutes, Title IX and the Violence Against Women Act, Section 304, that have been misaligned in ways that have confused colleges and complicated compliance. It is also good to see the OCR clarify investigation procedures and finally make clear that its rules for colleges are also almost entirely applicable to K-12 schools and districts.
The bulk of the proposed rules would broaden due process protections for students accused of sexual misconduct in school and college environments, while weakening longstanding protections for victims/survivors. The administration aims to transform what have been historically informal school disciplinary processes into adversarial, quasi-criminal legal proceedings with live hearings, evidentiary rulings and attorney-led cross-examination.
But when was the last time making any system more complex and bureaucratic made it better?
Due process proponents seem to think that the new rules, put forward by Secretary of Education Betsy DeVos, will save everyone’s sons from horrible college and school administrators who think all men are potential rapists. Or some such nonsense. Having worked with school resolution systems for 21 years, I don’t think the new rules will broadly accomplish fairer outcomes, unfortunately.
The resolution system schools have in place for sexual misconduct allegations could surely benefit from some changes and refinements, but the proposed changes won’t solve the unfairness problem. That is because the OCR has confused procedural unfairness with substantive unfairness, and fixing the procedures alone will not result in more accurate substantive outcomes.
Better substantive decisions will depend on having neutral and impartial decision makers in place, and then training them comprehensively in the fundamentals of good decision making.
You can’t overcome biased decision making with all the due process in the world. Live hearings won’t do it. Cross-examination can’t do it. Put another way: If the administration mandates that colleges and schools mirror criminal prosecutions procedurally, but doesn’t improve the substantive training and impartiality requirements, unfair outcomes will be the result, just as they are in the criminal system.
While some additional due process protections for those accused of sexual misconduct are welcome, the proposed regulations would take it way too far. They would, for example, require schools to provide immediate, detailed notice of the allegations in writing before any school interview of the accused. In a standard criminal process — which this is not — the police can question a suspect about alleged criminal activity without notice. The OCR says this is a needed due process protection. Except it isn’t. There is no reason to require a more rigid process under Title IX than is required by law in criminal investigations.
Currently, most colleges resolve sexual misconduct allegations through robust investigations. The proposed rules would also require live hearings before impartial decision makers to review the results of the investigation, interview witnesses and review evidence. However, there is no data to show that live hearings are less prone to error than results produced by non-adversarial investigations. And the draft of the regulations released in November indicates that the final rule the department plans to issue would mandate cross-examination between the parties, as well.
There is no research to indicate that cross-examination creates more accurate results than other ways of allowing the parties in a sexual misconduct case a full and fair opportunity to review and contest all evidence prior to a final determination. In fact, because cross-examination relies on talented questioning and sophisticated rules of evidence, it is susceptible to great variations in its effectiveness.
The Education Department has not adequately examined the effect of these new rules on victims/survivors or the burden imposed on colleges and schools. Many may chill students’ willingness to report sexual misconduct to school officials, which would completely undermine the purpose of Title IX.
If the administration truly wanted to fix the problem of unfair resolutions of misconduct allegations, it would start by requiring more rigorous training and accountability measures for the college administrators who oversee these processes and set standards for how colleges choose decision makers in these cases.
Instead, the rule changes will almost certainly ignite years of litigation and political battles. Colleges and schools will be caught in the middle between factions focused on victims/survivors and those focused on the accused. Who will win? That’s unclear. But who will lose? We all will.
I support rational, clear due process requirements for resolutions of all campus disciplinary matters — not just for sexual misconduct. But I fear that these new regulations will turn Title IX disciplinary proceedings into adversarial quasi-criminal courtrooms without making anything fairer for anyone.