In the past two years, the Trump administration has done at least three good things (look, even a blind pig can find an acorn!): supporting Juan Gerardo Guaidó Márquez instead of the dictator Nicolas Maduro as President of Venezuela (not to mention sending humanitarian aid there, which has been blocked), taking a stand for Israel in the notoriously Israel-hating United Nations, and changing the Title IX regulations on investigating sexual harassment and assault so they’d provide a fairer adjudication of claims. Do I need to assert again that these three things are outweighed by the endless number of missteps and awful things that Trump and his administration have done? Well, I assert that to ensure readers, who should already know this, that I am no Trumpite.
I’ve written about Title IX before (here, here and here, for instance), and about the changes that Betsy De Vos (yes, she’s odious) has made to the part of those regulations. As I wrote before, here’s the list of changes that will take effect:
1.) Schools would now be required to hold live hearings and not closed-door adjudications.
2.) The “single-investigator model,” in which one person adjudicates all the evidence and passes judgment, would go out the window. All collected evidence would now have to be presented to a (presumably) objective third party or parties.
3.) Both accusers and accused will be allowed to cross-examine each other through an advisor or a lawyer. However, those who accuse someone of sexual assault or misconduct cannot be directly questioned by the defendant, which seems fair and protective of people’s psyches. They can, however, be questioned by a third party like a lawyer or adviser. This was something that was missing in the Obama regulation, but was recently mandated by a federal court ruling in Michigan.
4.) A “rape shield” protection will remain in place, so that a complainant’s sexual history will remain strictly off limits.
5.) Hearing, like court cases, will be conducted with the presumption of innocence of the accused.
6.) Instead of relying on the “preponderance of evidence” standard mandated by the Obama “suggestions,” schools can use either that standard orthe “clear and convincing evidence” standard, which is stricter but still not as strict as the “beyond a reasonable doubt” standard used in courts.
And I added this:
While the regulations aren’t perfect, I see them as a substantial improvement over the Obama-era regulations, especially the standards of guilt based on “preponderance of the evidence” (>50% likelihood of guilt) rather than “clear and convincing” evidence (roughly > 75% chance of guilt) or the court standard of “beyond reasonable doubt”. At present, if the finder of fact who collects the evidence—who is, unbelievably, also the judge and jury—finds the accuser even just a tiny bit more credible than the accused, it’s curtains for the latter: explusion and probably the ruining of one’s life. Sadly, even under DeVos’s changes colleges are still allowed the option of choosing “preponderance” of evidence above some more stringent standard, and I’m sure most will opt to keep the looser standards.
But the new regulations also eliminate the possibility of the investigator also being the judge and jury, which is good since it promotes objectivity; and they also allows the accused to see all the evidence against him (it’s usually a male), as well as allowing a companion of the accused (often a lawyer) to cross-examine the accuser. Such cross-examination was not allowed before, but is essential for even the most rudimentary form of justice.
In a poll on this site, readers thought that the accusations should be first handled by the police and only then adjudicated by the college (presumably only if the accused were brought to trial or convicted), with more favoring a “clear and convincing evidence” standard than other standards:
There are also changes that I’m not sure about, like prohibiting universities from investigating assaults or harassment that take place off campus. That, it seems to me, doesn’t make a lot of sense given that Title IX states the following:
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.
It could be argued that off-campus harassment or assault of one student by another does constitute discrimination under an education program, since the students are in college.
Nevertheless, I’m strongly in favor of changing the standards for guilt—making them halfway between the “preponderance of evidence” of civil suits and “beyond reasonable doubt” of criminal cases—of allowing the accused to have representation and to question (indirectly) the accuser, and of having the “decider” be different from the investigator. These changes seem to me to ensure a fairer process.
But a lot of people, and many people on the Left, have objected to these changes—largely on the grounds that they “favor the accused” or “discriminate against survivors” (this assumed that all accusations are accurate), or “allow rapists to get off more easily” (that doesn’t seem to be a consideration in criminal trials). As examples, here are two editorials from student newspapers, one in the Chicago Maroon and the other in the Williams Record, making one or more of these accusations.
Even the American Civil Liberties Union (ACLU) opposed the changes, which is bizarre since that organization is dedicated to preserving the civil liberties of Americans. And the ACLU’s opposition was based on the fact that the new regulations are “unfair,” favoring the accused. That’s weird given the ACLU’s history of ensuring that defendants are judge fairly. Here are two tweets giving the ACLU’s earlier position:
Now, according to a piece by Conor Friedersdorf in The Atlantic (click on screenshot below), the ACLU has softened its opposition to the changes, although not adopting them wholesale.
You can read the ACLU’s response here. These are the changes they support:
At the same time, the ACLU supports many of the increased procedural protections required by the Proposed Rule for Title IX grievance proceedings, including the right to a live hearing and an opportunity for cross-examination in the university setting, the opportunity to stay Title IX proceedings in the face of an imminent or ongoing criminal investigation or trial, the right of access to evidence from the investigation, and the right to written decisions carefully addressing the evidence.
But they oppose the regulations in several respects, and I agree with some of this opposition.
. . . the ACLU believes the Proposed Rule undermines Title IX by substantially reducing the responsibility of institutions to respond to claims of sexual harassment and assault. The Proposed Rule employs an unduly narrow definition of sexual harassment, allows schools not to investigate incidents that they reasonably should have known about, precludes schools from conducting investigations that would often be necessary to determine whether an incident constitutes sexual harassment, relieves schools of the obligation to investigate most student-on-student harassment or assaults that occur off campus even where they have continuing effects on campus, and allows schools to adopt unreasonable responses to complaints, holding them responsible only if their actions are “deliberately indifferent.”
Most important, they still favor the “preponderance of evidence” standard, which, by making someone guilty with a 50.1% likelihood of guilt, makes the outcome of a hearing more or less a judgment call.
More specifically, the ACLU recommends that the standard of proof for such proceedings should mirror the standard governing virtually all other civil proceedings, requiring proof by a preponderance of the evidence; that the right to cross-examination should be modified to guard against abusive questioning, to afford both students lawyers if they so choose, and to apply only when serious sanctions are possible; that the provision governing concurrent criminal proceedings should be strengthened to further safeguard respondents’ rights against compelled self-incrimination; that the provision guaranteeing access to evidence collected by investigation should be clarified to provide that irrelevant and privileged information and communications are not subject to disclosure absent a showing of particularized relevance; and that the appeal provision be clarified to ensure that complainants are entitled to appeal sanctions on the ground that they are insufficient to restore equal access to the recipient’s educational programs or activities.
The retention of the “preponderance of evidence” standard is a serious weakening of defendants’ rights, and I don’t agree that sexual harassment and assault should use the same standards as judgments for money in a civil trial. After all, the consequences to someone found guilty in a college hearing are branding as a sexual predator for life, probable inability to get a college education anywhere, and thus a severe lifelong punishment. For that I’d say that the “75%” rule is fair. Friedersdorf agrees:
. . . many of the most serious campus disciplinary hearings strike me as very unlike most civil trials in important respects. At public institutions, agents of the state are bringing charges against a student and perhaps imposing discipline, compared with one party suing another to try to recover damages. As Scott Greenfield, a criminal-defense attorney, writes on his blog Simple Justice, “this is no ‘grievance procedure’ but a subconstitutional criminal prosecution that has consequences more severe than the vast majority of crimes.”
At the end, though, Friedersdorf punts a bit, saying that, well, reasonable people can disagree about the standards of guilt, so why not let colleges decide? His words:
And that strikes me as a final argument against the ACLU’s position [to oppose the tougher standard of guilt]. That is to say, because this is a tough question about which reasonable people can and do disagree, it makes sense to give different educational institutions leeway to adopt different burdens of proof. Perhaps the relevant tradeoffs vary with local circumstances in a way that makes different standards right for different institutions. Or perhaps a diversity of approaches is the best way to evaluate which burden is best and ought to be adopted universally at some point in the future.
This is like saying that different states should adopt different standards of guilt in criminal trials because in some states more people want criminals found guilty (or even executed) under more lax standards. Title IX was a law meant to apply to all colleges getting government funding, and to ensure that nobody was denied access to education on the grounds of sex. If being found guilty means denial of access to education, which it does, why not hold to a given standard? In fact, as far as I know, in fact, colleges are still free to choose whatever standard of evidence they want. (I may be wrong here, but that’s my understanding.) I’m not sure this is the right thing to do.
And, after arguing in favor of the Title IX changes through his entire article, why, at the end, does Friedersdorf favor a “diversity of approaches”? It’s not as if this will tell us “which burden is best and ought to be adopted universally,” for that presumes that this is a controlled experiment in which we know whether the accused or guilty or not. Further, I think that opposition to these changes often have more to do with ideology than with justice, but they shouldn’t.
