Misconceptions about the new Title IX regulations

Much as I despise Trump and most of his administration, I’m not going to damn everything that administration does simply because we have an incompetent infant as President. And there are few good things. One of them was to revamp the Title IX regulations, which under Obama had been changed so that students accused of sexual misconduct in universities had few rights. Procedures and hearings were manifestly unfair and weighted toward the accuser, with the result that many colleges are having to pay big bucks when they’re found in real courts to have acted unfairly.

The Trump (really the DeVos) regulations made things more equitable (see here, here, here, and here).  A poll in 2018 showed that the bulk of WEIT readers favored the police handling the cases first, and only then should colleges take up the issue (presumably colleges wouldn’t adjudicate cases in which the police could find no reason to charge somebody with sexual misconduct). Here are the poll results:

This article (this time a new one!) from the Foundation for Individual Rights in Education (FIRE), links to the new Title IX regulations . If you don’t know, those regulations are part of the Educational Amendment Act of 1972, stipulating that “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.”

You can read the new regulations (pdf here), but there are 2033 pages in the document! They’re shortly to become law but are now in draft form. Fortunately, FIRE has read them so you don’t have to, and discusses what they do and do not say. Click on the screenshot:

FIRE then dispels five misconceptions about these new regulations, which seem a marked improvement in the Obama administration’s policies, and more likely to ensure justice in college accusations of sexual misconduct.

Here are the five misconceptions. FIRE’s take is indented, while my own comments are flush left.

1.) The regulations mandate that sexual harassment cases be treated differently from racial harassment cases.

This is false; all cases must now be adjudicated the same way. The standard used is the Supreme Court’s interpretation of harassment, which involves both a subjective and an objective standard:

The new regulations’ definition of hostile environment harassment tracks the Davis standard: “Unwelcome conduct determined by a reasonable person to be so severe, pervasive, and objectively offensive that it effectively denies a person equal access to the recipient’s education program or activity.”

Note that a simple claim that “I felt I was harassed” is not sufficient here; conduct must meet a standard that meets what a reasonable person sees as constituting harassment. Note that this is similar to some colleges’ abrogation of the First Amendment when a student feels offended or attacked. That, too, is not enough: to violate the First amendment, speech considered harassing has to be judged by more than the recipient, but by an objective standard. To me that seems eminently reasonable.

Further, currently most colleges do have a literal double standard for sexual versus racial harassment:

. . . most colleges maintain a bifurcated system where sexual misconduct cases are dealt with differently from all other cases, including racial harassment cases. Some schools, inclined to require “clear and convincing evidence” for a responsible finding, have been using a higher standard of evidence for non-sex-related cases than for sex-related cases since 2011. ED’s rescission of this 2011 mandate and finalization of the new regulations gives institutions a path (and ED has encouraged institutions) to use the same standard for both types of cases.

“Clear and convincing evidence” is a 75% or higher probability of guilt, though the Obama-era standard for sexual misconduct was “preponderance of the evidence”—that is, only a greater than 50% probability of guilt. Both of these are far less stringent that legal criminal conviction, which requires “guilt beyond a reasonable doubt.”

This need no longer be the case (see below). Finally, many colleges allow live hearings for cases not involving sexual misconduct, but not for those involving sexual misconduct. The accused weren’t allowed to confront the accuser, ask questions, or even have a lawyer. That, too is changes, as it should be.

2.) The regulations raise the standard of evidence for campus disciplinary cases.

Again, a misconception. Institutions can choose to use either a preponderance of evidence standard or a “clear and convincing evidence standard”, but they must use the same standard for all complaints of sexual harassment, including those against faculty or employees.  I myself would prefer at least a “clear and convincing evidence” standard if you’re engaged in proceedings that could result in someone being suspended from college, so in this case the Title IX regulations don’t go quite far enough for me. And judging by the poll above, probably not far enough for the readers.

3.) The regulations gut Title IX protections. 

Critics of the regulations claim that they “gut[] Title IX protections for students.” To the contrary, as my colleague Joe Cohn explained in a post earlier this month, the regulations require that schools provide new and important safeguards, options, and tools to both complainants and respondents, and they bring the focus of the regulations back to the original purpose of Title IX — ensuring equal access to education.

Right now, too many institutions aim for whatever result is worst for the respondent, not whatever result is best for the complainant. They are concerned with punishing students who they deem guilty, but they are not necessarily asking what complainants feel would be most helpful for them to continue their education. That serves no one.

Safeguards like the opportunity to question witnesses aren’t just useful for respondents; they can be used by complainants and their representatives to demonstrate to fact-finders the truth of their complaints, too. With more information shared in advance of the hearing, complainants will be better able to prepare for it. And with a guarantee of impartial fact-finders and public training materials, complainants can have more confidence that their cases will be handled fairly — or more recourse if they aren’t.

This reminds me of my experience in the courts as an expert witness in DNA cases, when the prosecution often seemed hell-bent on getting a conviction, even if, as they did in some of my cases, they deliberately tried to confuse the jury or to cast doubt on manifestly true statements. Their desire often seemed to me not to ensure that justice was done (which is their explicit mission), but to find someone guilty. The way Title IX has been used by colleges often resembles that tactic.

4.) “But my school already provides a fair disciplinary procedure!” 

We’ve spoken with many administrators who think that they already provide procedural safeguards like notice of charges and an opportunity to be heard. But these administrators’ institutions often do not actually guarantee these safeguards; instead, they maintain policies that allow an administrator to grant those safeguards or to omit them, at their discretion. This is problematic on several levels. First, it means that one student (indeed, a complainant or respondent) may be treated better or worse based on an administrator’s personal feelings about them or their case. Such a result cannot stand. Second, it means that many students will, in practice, be denied these procedural safeguards, effectively depriving them of a meaningful opportunity to present their cases.

The new regulations require that the “procedural safeguards” be spelled out clearly and specifically. That is surely an improvement.

Finally,

  1. Institutions can’t handle this right now.

Critics of the regulations have argued that now was the wrong time to finalize these regulations. Subsequent headlines described the regulations as “quietly” enacted, as if there hasn’t been constant discussion of their imminence for nearly 18 months among those with an interest.

The regulations were proposed in November 2018. Over 120,000 comments were submitted, and ED had to read and prepare a response to them all. (Hence, also, the length of the supplementary information.) When that was finished, organizations opposing the regulations reportedly (according to a college administrator who also opposes the regulations) implemented a strategy to delay their release for months more. Then COVID-19 hit. Institutions had over a year before then to plan for policy revisions. And without the delay strategy, the regulations may have, indeed, been finalized before this pandemic reached the United States, or at least before it changed the landscape for schools nationwide.

In the end, if FIRE’s analysis be true, the new regulations make the system more fair, ensuring that justice is more likely to be done. They do not, as some assert, go easy on rapists, harassers, or sexual predators. And even those accused of rape deserve a fair hearing, whether it be in courts or in colleges.

FIRE says “read the document yourself”.  I haven’t, as it’s so long, and even FIRE argues that the new regulations aren’t perfect. Nor are they for me: as I said, I’d use a “clear and convincing evidence” standard. But they do seem a marked improvement over the Obama-era “Dear colleague” standards, guaranteeing that both accuser and the accused have rights and procedures that are protected.  Trump, of course, didn’t have anything to do with these changes, so if you disagree with them, you can’t pin it on him. But even a blind pig can find an acorn, and even an abysmal administration can occasionally get things right.

15 Comments

  1. Rita Prangle
    Posted May 25, 2020 at 1:49 pm | Permalink

    When this post popped up, I was reading about a lot of vague accusations directed at author Sherman Alexie, and the many awards that have been rescinded on the basis of the very flimsy “evidence”.

  2. Posted May 25, 2020 at 2:16 pm | Permalink

    ““Clear and convincing evidence” is a 75% or higher probability of guilt, …”

    Is the 75% figure specified legally? I’d have interpreted a “clear and convincing” threshold as more like 90%. I wouldn’t regard myself as “convinced” if I also considered that I had a one-quarter probability of being wrong.

  3. Ken Kukec
    Posted May 25, 2020 at 3:13 pm | Permalink

    There’ no point to treating any kind of harassment different from any other. The whole point of prohibitions on harassment is that it constitutes mere “verbal conduct” as opposed to the expression of an idea. Following someone around screaming at them, for example, is offensive regardless of what is being screamed. The same with repeatedly calling someone at all hours of the night on on the telephone. The lack of import of its ideological content is the precise reason harassment isn’t protected by the First Amendment.

    The obverse side of this is that conduct that conveys an idea is protected by the First Amendment, even if it involves no express verbal communication. This is so whether the conduct in question is the wearing of a black armband during an anti-war moratorium or a dance performance (even if the dance performance is of the hoochie-coochie variety).

    • Randall Schenck
      Posted May 25, 2020 at 3:47 pm | Permalink

      There are tons to read about sexual harassment on the net and this is just one of them. Not really something for the court room. What I don’t understand about the college aspect of this is why they want to handle it like a court appearance for all to participate in. It sure isn’t in the workplace.

      https://www.workplacefairness.org/sexual-harassment-legal-rights

      • Ken Kukec
        Posted May 25, 2020 at 4:08 pm | Permalink

        Businesses with 15 employees or more must meet the standards of Title VII, as private university that accept federal funding must meet those of Title IX. But government employers and public universities must (like courtrooms) further comport with the requirements of the First Amendment.

        • Randall Schenck
          Posted May 25, 2020 at 4:33 pm | Permalink

          I understand that Ken but I still do not understand the process used by schools regarding sexual harassment allegations. In the workplace many of the harassment cases are handled and solved by the investigator without further procedure. In other words if you have good, trained investigators the cases are handled fairly quickly, and quietly and without a committee or courtroom. All this stuff about questioning the victim or accuser by the accused does not happen.

          • Ken Kukec
            Posted May 25, 2020 at 7:36 pm | Permalink

            Private companies disciplining at-will employees can use pretty much any procedure they want (consistent with their employee handbook or other corporate guidelines, if any), I suppose.

            As for public institutions, they’re bound not just by the First Amendment, but the Due Process clauses of the Fifth and Fourteenth Amendment, too.

  4. Ken Kukec
    Posted May 25, 2020 at 3:48 pm | Permalink

    “Clear and convincing evidence” is a 75% or higher probability of guilt, though the Obama-era standard for sexual misconduct was “preponderance of the evidence”—that is, only a greater than 50% probability of guilt.

    I’m not sure where the numerical formulation 75% for “clear and convincing” comes from; I’ve never heard it used at a trial or other formal adjudicatory proceeding (although the “greater than 50%” formulation is fairly routine for “preponderance”).

    A standard jury instruction used in federal court defines “clear and convincing” (rather tautologically, I concede) as follows:

    Clear and convincing evidence requires that the party asserting the claim
    convince you that the existence of each contested fact or element is highly probable rather than merely more probable than not. To satisfy the clear and convincing evidence standard, there must be evidence indicating that the thing to be proven is highly probable. Clear and convincing evidence is a very demanding standard, requiring less than evidence beyond a reasonable doubt, but more than a preponderance of the evidence.

  5. Posted May 25, 2020 at 7:36 pm | Permalink

    Why are these alleged assaults reported to the police? If they’re serious enough to be expelled, the serious enough for a criminal prosecution.

    The churches got into no end of trouble dealing with sexual assault complaints in house.

    • Posted May 25, 2020 at 7:36 pm | Permalink

      should be not reported

    • Ken Kukec
      Posted May 25, 2020 at 7:51 pm | Permalink

      Do you think institutions like universities and corporations should be powerless to address harassment of their students/employees that doesn’t rise to the level of a crime?

      That’s a pretty high threshold (one that can force toleration of some awfully untoward conduct).

      Seems there should be some recourse for the victims of such harassment short of involving the criminal justice system. What if they just want the harasser to stop, rather than to saddle them with a criminal conviction?

      • Posted May 25, 2020 at 8:31 pm | Permalink

        Sexual assults are crimes that should be reported rporyed

        • Ken Kukec
          Posted May 25, 2020 at 9:04 pm | Permalink

          That doesn’t answer my question, Jim.

          I didn’t ask about sexual assault; I asked about harassment, whether sexual or otherwise — the creation of a set of circumstances that would make a reasonable person extremely uncomfortable, at work or at school.

          Is a school or workplace powerless to do anything to rectify that situation in your opinion? The only recourse is law enforcement?

  6. Posted May 26, 2020 at 11:16 am | Permalink

    As a person who’s taught classes in legal ethics for 20 years, I was interested in your observation that prosecutors “deliberately tried to confuse the jury or to cast doubt on manifestly true statements. Their desire often seemed to me not to ensure that justice was done (which is their explicit mission), but to find someone guilty.” Unfortunately, the legal ethics rules do not unambiguously prohibit such behavior and, some years ago, even removed the provision that said the prosecutor’s job is to do justice and not obtain convictions. Of course, defense lawyers do the same thing sometimes, but the situation seems different when the lawyer for the government is doing it. There are rare cases, very rare, and which courts have reprimanded prosecutors for especially egregious tactics, but most likely prosecutors who do these things will get promotions and raises for their good record in getting convictions.

  7. CUrtis
    Posted May 26, 2020 at 12:05 pm | Permalink

    I applaud you praising people for their good actions even when you dislike them. This is a rarity in our current politics. Everybody has their good points and their bad points.

    Too often there is a jerk knee reaction to love/hate something because of the speaker instead of the facts. I think this is what I find most disappointing and dangerous in our reaction to coronavirus.


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