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,

5. 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.