Content Warning: This article contains a general description of sexual assault scenarios on college campuses.
Just over two weeks ago, Secretary of Education Betsy DeVos proposed new rules on how colleges and universities are to comply with Title IX, a law forbidding any school that receives federal funding from discriminating against students on the basis of sex. The proposed regulation is aimed at changing the way schools handle sexual misconduct investigations and adjudications. Contrary to guidances issued by the Obama Administration in 2011, which were designed to combat sexual assault on campus, the Trump Administration alleges that the goals of the proposed rules are “clarity for schools, support for survivors, and due process rights for all.” (Another view is that the proposals may, in fact, be designed to broadly protect educational institutions from liability). Specifically, the new rules require the opportunity for both accusers and the accused to cross-examine each other via advisors or lawyers, allow schools to increase the burden of proof for sexual misconduct cases, limit the jurisdiction of school sexual misconduct adjudications, prohibit schools from using a single-investigator model, and more. Relative to the previous guidelines, these would almost certainly make it more difficult to find the accused responsible for sexual assault and harassment.
Shortly after the proposed rules were announced, the American Civil Liberties Union criticized the proposal as “inappropriately tip[ping] the scales in favor of the accused and against those who report sexual assault.” The ACLU’s criticism garnered a considerable amount of consternation online. An Atlantic writer called the ACLU’s opposition to DeVos’s proposed rules “a stark, shortsighted betrayal of the organization’s historic mission.” One criminal defense blogger announced that the ACLU was dead, and denounced the organization’s tweet criticizing the proposed rules as its epitaph. To these critics, it was hypocritical of the ACLU to be against any procedure that favored the accused. But the critics are missing half of the story: Title IX proceedings are not solely intended to punish students for a violation of university code, but rather to protect all students’ right to be free from a regime of inequality and sexual assault.
For the majority of my years as a college student, I worked for my university’s student legal aid office defending students in disciplinary proceedings, which included Title IX proceedings for sexual misconduct. I was the “advisor” whose role would be largely increased under DeVos’s proposed rules. I advised the accused in dozens of Title IX proceedings, and I adamantly oppose most of the proposed rules. I witnessed the complex procedure my university had designed to comply with the Obama-era guidelines, and while it was not a perfect system, I believe it still protected the due process rights of the accused while doing more to combat sexual assault on campus than would a process recommended by the Trump Administration. The proposed rules needlessly focus on only one half of the equation.
Those who criticized the ACLU’s opposition to the proposed rules focused only on whether the proposal favors the accused. To that Atlantic writer, it is unconscionable that the ACLU would criticize the proposed rules specifically because the rules inappropriately favor the accused. It is crucial to understand that Title IX proceedings at college campuses are not criminal prosecutions. While there is a constitutional right to due process when a student is suspended from a public university, this fact alone does not entitle a student to the same levels of process as defendants in criminal trials. The interest at stake for the accused individual is undoubtedly large, but just as with nearly all administrative hearings, the amount of process due is a specific and debatable question. In the case of Title IX proceedings, there is a competing right along with the due process considerations of the accused: there is a right of all students to be free of what has been called “a regime of inequality” that is maintained by the persistence of rape and sexual harassment on college campuses. To evaluate the worth of any procedural requirement, it is essential to compare the amount it helps combat the campus sexual assault crisis with the amount it increases the due process rights of the accused. It is similarly essential to define due process as that which makes a process fair, not simply a process in which it is more difficult to convict a defendant. This framework comes straight from the seminal case on due process rights in administrative hearings, Mathews v. Eldrige, which requires courts to balance the individual’s interest, the probative value of an additional procedure, and the government’s interest.
To understand the need for balance in this system, it makes sense to look at a few of the proposed rules more closely. Take, for example, the requirement that the accused be allowed to cross-examine their excusers via a lawyer or advisor. Because of the nature of campus sexual misconduct cases, the cross-examination requirement would in no way lead to a more accurate or a fair system. The “he said, she said” nature of the facts at question in a sexual misconduct case understandably lead the defense to want cross-examination in order to weaken the credibility of the accused, as is typically the goal of cross-examination in any case. While cross-examination is crucial in a criminal trial, a university should be able to choose to rely on the investigative process to determine credibility of witnesses instead of on cross-examination. Given that the accused will always be able to emphasize any favorable facts and any doubts as to the credibility of a witness anyway, and that false rape accusations are incredibly rare, there are good reasons for a school to decide not to allow cross-examination of the accuser. For the little added good cross-examination does for the accused, it will almost certainly retraumatize a victim of sexual assault, and thus further decrease the likelihood that a victim will come forward (currently, “more than 90% of sexual assault victims on college campuses do not report the assault”). A cross-examination requirement would do damage to a university’s legal responsibility to combat sexual misconduct, while doing little to increase the accuracy or fairness of a Title IX hearing. The fact that it would diminish reporting and thus make it harder to find a student responsible for sexual misconduct is simply not due process.
In contrast to a cross-examination requirement, the proposed rules are right to move away from a single-investigator model (also known as the “investigator-only” model) in which one person acts as both investigator and adjudicator on a case. Unlike reducing the jurisdiction of a school’s Title IX office, adding cross-examination requirements, or narrowing the definition of “sexual harassment,” the prohibition on a single-investigator model can meaningfully strengthen the rights of the accused without lessening a school’s ability to confront the sexual assault crisis. The single-investigator model is one of the few procedures that has been rejected by some courts. There is reasonable concern about any potential bias that a person may naturally incur when he or she has to investigate an accusation of sexual assault and simultaneously make a final judgment about it (this is particularly true when considering the fact that people trained in investigative skills may be more likely to assume their subjects are lying). At my university, an investigator made all findings of fact and then presented them and a preliminary judgment to a board of adjudicators (comprised of impartial, specially-trained students and faculty) who would make the final decision on responsibility. I found that this allowed the investigator to focus on fact-finding, while the board members could focus on objectivity. Passing findings through an impartial body before determining culpability does not run the risk of retraumatizing a victim, nor does it make it more difficult to fight sexual assault on campus, since the investigator is still able to make a recommendation to the adjudicatory body.
Lastly, consider the proposal to allow schools to increase the burden of proof in Title IX hearings from a preponderance of the evidence to clear and convincing evidence. Title IX proceedings are quintessential examples of cases that truly require balance. Increasing the standard certainly increases the due process rights of the accused, but it also makes it incredibly difficult to combat sexual assault on campus. The nature of sexual assault on college campuses is such that many cases involve minimal evidence—typically, the credible accusation from a victim. 90% of the time, victims of sexual assault know their attackers, and the vast majority of acquaintance rapes involve alcohol. These prototypical cases of sexual assault on campus often involve an acquaintance acting under the guise of a typical sexual encounter and waiting to disregard his victim’s consent until the two are alone and there are no more witnesses. To demand a higher burden of proof is, in effect, to disqualify a large swath of assaults from ever being addressed, and this greatly increases the school’s interest in keeping a preponderance-of-the-evidence standard. A preponderance standard still allows a fair process. In fact, I witnessed many accused students found “not responsible” under a preponderance standard, even when an investigator thought a preponderance existed. There is a good reason that nearly all civil cases use this standard, and to ask that schools decide to favor the accused instead of a using a balanced approached undercuts the entire purpose of Title IX.
Title IX proceedings are an attempt to defend civil rights—an attempt to combat a regime of inequity on college campuses. To criticize them for lacking in procedural constraints when compared to criminal proceedings is to ignore the crucial fact of why Title IX exists at all. Criticizing Secretary DeVos’s proposed rules, as the ACLU did, is not anti-civil rights and liberties, but rather acknowledges the need to balance the due process rights of the accused with the right to a safe and equal education for all.