What are the new Title IX sexual misconduct rules about and will schools need to follow them?
Title IX is a Federal education law that rightfully demands that everyone who is present at an educational institution that receives federal funding (practically every school in the US including K-12, college, as well as graduate and vocational programs) be free from sexual discrimination. (1). The more recent story on Title IX discrimination stems from how all these institutions dealt with sexual assault both from faculty and staff on students, and from students on other students: The schools racked up a shameful record of sweeping the matter under the rug, of delaying, of telling rape victims that they should go on with their lives. (2). School staff deployed deplorable stereotypes, telling women to be conscious of their clothing for they (as weak vixens lacking agency or though) could adopt prophylactic ways to not trigger men (as perennial rapists, “boys will be boys”) and thus solve the problem. (3). Not so. Activism got woke and even produced a movie. (4). Obama published one little letter to the schools. (5) And schools then swung the other way and started expelling men for ridiculous reasons and with even more ridiculous and shameful procedures to accomplish the expulsion. (6). So activism for men’s rights got woke too. (7). Thus that state of the Title IX wars.
More recently, in an outlier of a regulatory effort given the current Federal Government, the Department of Education has carefully revoked Obama’s guidance (8) and the reasons why this took place tell you what the new guidance will be about:
“The 2017 Letter singles-out as flawed the following procedures set forth in the 2011 Letter: (i) requiring “schools to adopt a minimal standard of proof—the preponderance-of-the evidence standard—in administering student discipline, even though many schools had traditionally employed a higher clear-and-convincing-evidence standard”; (ii) “insist[ing] that schools with an appeals process allow complainants to appeal not-guilty findings, even though many schools had previously followed procedures reserving appeal for accused students”; (iii) “discourag[ing] cross-examination by the parties, suggesting that to recognize a right to such cross-examination might violate Title IX”; (iv) “forb[idding] schools from relying on investigations of criminal conduct by law-enforcement authorities to resolve Title IX complaints, forcing schools to establish policing and judicial systems while at the same time directing schools to resolve complaints on an expedited basis;” and (v) “provid[ing] that any due-process protections afforded to accused students should not ‘unnecessarily delay’ resolving the charges against them.” The 2017 Letter notes that “[t]he Department imposed these regulatory burdens without affording notice and the opportunity for public comment.”
SurvJustice Inc. et. al., v. Elizabeth deVoss et.al, Case No.18-cv-00535-JSC, NDCa (dkt. 149). (9).
In yet another outlier, The Department of Education then carefully followed a rigorous process to issue actual rules to clarify the Title IX process in student sexual misconduct proceedings with the hopes of guaranteeing better justice for all involved:
“DeVos's proposed guidelines tighten the definition of what constitutes sexual harassment, from behavior "sufficiently serious that it interferes with or limits a student's ability to participate in or benefit from the school's program," to "unwelcome conduct on the basis of sex that is so severe, pervasive, and objectively offensive that it effectively denies a person equal access to the school's education program or activity." They would require that colleges allow cross-examinations, and would no longer mandate the "preponderance of evidence" standard. The proposal also explicitly states that respondents must be provided with "due process protections."” (10).
This was such an important moment in the history of Title IX, that even I submitted comments as part of the rule making process to state what my personal desires would be if, now that I have seen so many Title IX sexual misconduct respondents go through the process, I were subjected to one such process. These comments include my desire that Title IX force my school to only use “John Doe” to identify me, that Title IX force the school to clear my record (what lawyers call “expungement”), and that Title IX force my school to pay for my lawyer because there is no way to do this without a lawyer, all available here:
https://www.studentmisconduct.com/news/2016/6/29/blog-post-03-harris
https://www.studentmisconduct.com/news/2016/6/27/blog-post-04-harris
https://www.studentmisconduct.com/news/2016/6/27/blog-post-05-harris
I was not alone in my interest. Over 100,000 people submitted comments that go from the glib, to the extremely thoughtful (11). Part of the urgent need to comment stems from the fact that these rules will be law and schools will need to follow them (12)--in contrast to the Obama-era and to the current “guidance”, which is really a non-binding goal without any teeth (13). I guess that the new rules will implement at least three major changes. First, they will guarantee the sexual misconduct respondent can cross examine the complainant. Second, they will guarantee that the school has to choose “clear and convincing” as an evidentiary standard because, third, the rules themselves will narrow Title IX violations to the most serious allegations.
Once the Rules come into effect anti-sexual assault activists will run to the courts to try and invalidate them. (14). That charge of the light brigade will most likely argue that the Department of Education acted capriciously by ignoring the comments (15). That ignorance would argue that the view that it is unfair to make it the law for a woman in college to face a cross examination from the man she accuses of raping her (16). They will argue that preponderance is the correct standard because that is the civil standard used in sexual discrimination in employment (17). They will also argue that every conceivable instance of discomfort falls under Title IX. Their litigation will fail because the Department of Education followed the proper procedure, and listened (18).
But this matters little. The party with the greatest bargaining power is the school—meaning the school as a corporation with employees trying to get home by 5:00 PM, as opposed to a whole community—and that party will decide what to do.
Raul Jauregui
I am an attorney and I defend mostly respondents of sexual misconduct in colleges or universities. This is absolutely not my legal opinion or my legal advice, but rather survey of the Title IX topic. If you’re in this situation, in any way, consult a lawyer now.
As posted in Quora:
ENDNOTES
(1) The full and brief text of Title IX can be found here: https://en.wikipedia.org/wiki/Title_IX
(2) This article from 2010, before the current Title IX crisis, states it well:
“Additional data suggests that, on many campuses, abusive students face little more than slaps on the wrist. The Center has examined what is apparently the only database on sexual assault proceedings at institutions of higher education nationwide. Maintained by the U.S. Justice Department’s Office on Violence Against Women, it includes information on about 130 colleges and universities receiving federal funds to combat sexual violence from 2003-2008, the most recent year available. Though limited in scope, the database offers a window into sanctioning by school administrations. It shows that colleges seldom expel men who are found “responsible” for sexual assault; indeed, these schools permanently kicked out only 10 to 25 percent of such students.”
Kristen Lombardi: A Lack of Consequences for Sexual Assault, The Center for Public Integrity, February 24, 2010, available at: https://publicintegrity.org/education/a-lack-of-consequences-for-sexual-assault/
(3) There’s a lot of stories on Title IX staff victim blaming, (for example https://www.sun-sentinel.com/news/education/fl-south-florida-victim-blaming-20171020-story.html) just as there’s a lot of stories on Title IX staff assuming the male respondent is a rapist (including https://www.npr.org/templates/story/story.php?storyId=124272157). The point is that the Title IX staff simply picks the bias that causes them the least trouble and allows them to keep their job; which lately has become hard to keep (https://www.chronicle.com/interactives/20190905-titleix-pressure-cooker).
(4) http://thehuntinggroundfilm.com/
(5) The Obama-era Title IX guidance is available at: https://www2.ed.gov/about/offices/list/ocr/letters/colleague-201104.html and at https://www2.ed.gov/about/offices/list/ocr/docs/qa-201404-title-ix.pdf
(6) There are plenty of databases tracking the many ridiculous Title IX expulsions which leave male respondents with no other option but to lawyer up and run to the courthouse to protect their future. For example: https://www.thefire.org/research/campus-due-process-litigation-tracker/
(7) In general arguing men are reverse-discriminated in college, for example, https://www.msn.com/en-us/news/us/mens-rights-activists-use-title-ix-to-claim-discrimination-nbc-left-field/vp-BBQXDUl, and specifically that men are reverse-discriminated as sexual misconduct respondents under Title IX, for example, https://www.studentmisconduct.com/news, https://helpsaveoursons.com/.
(8) The Department of Education’s 2017 Guidance and revocation of the Obama-era guidance is available here:
(9) Magistrate Judge Jacqueline Scott Corley’s decision dismissing Survjustice, Inc. et al v. Elizabeth deVos and the Department of Education is available here:
https://www.courthousenews.com/wp-content/uploads/2019/11/DOESexAssaultGuidance-JUDGMENT.pdf
(11) I cite to the thoughtful one only: https://conradobrien.com/uploads/attachments/cjrjac2cb0cmt01iw4vzo4aev-comments-of-concerned-lawyers-and-educators-in-support-of-fundamental-fairness-for-all-parties-in-title-ix-grievance-proceedings-1-28-2019.pdf
(12) Rules that are issued in compliance with certain legal requirements, and that fall within the scope of authority delegated to the agency by Congress, have the force and effect of law. Rules that carry the force and effect of law are known as legislative rules. These rules are to be distinguished from non-legislative rules, such as interpretive rules and policy statements, which lack the force and effect of law. See, e.g., Appalachian Power Co. v. EPA, 208 F.3d 1015, 1020, (D.C. Cir. 2000) (“Only ‘legislative rules’ have the force and effect of law ... A ‘legislative rule’ is one the agency has duly promulgated in compliance with the procedures laid down in the statute or in the Administrative Procedure Act.”); Nat’l Mining Ass’n v. McCarthy, 758 F.3d 243, 250 (D.C. Cir. 2014) (“Legislative rules have the ‘force and effect of law’ and may be promulgated only after public notice and comment.”).
(13) “Thus, unlike the challenged agency action in Gill, the 2017 Guidance does not “impose[ ] direct and appreciable legal consequences” because the government cannot “take enforcement actions against a noncomplying” school under the Assurances based on a violation of the Guidance.” Note 9 at 24, supra.
(14) The Administrative Procedure Act, 1 5 U.S.C. §§ 701-706, provides that courts may hold unlawful and set aside agency actions:
“The reviewing court shall ... hold unlawful and set aside agency action, findings, and conclusions found to be – (A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (B) contrary to constitutional right, power, privilege, or immunity; (C) in excess of statutory jurisdiction, authority, or limitations, or short of statutory right; (D) without observance of procedure required by law; (E) unsupported by substantial evidence in a case subject to sections 556 and 557 of this title or otherwise reviewed on the record of an agency hearing provided by statute; or (F) unwarranted by the facts to the extent that the facts are subject to trial de novo by the reviewing court.”
Available at: https://www.justice.gov/sites/default/files/jmd/legacy/2014/05/01/act-pl79-404.pdf
(15) The DOE rules would hardly be the product of capricious, illogical, or inconsistent reasoning because “a court is not to substitute its judgment for that of the agency.” Rather, a court should only invalidate agency determinations that fail to “examine the relevant data and articulate a satisfactory explanation for [the] action including a ‘rational connection between the facts found and the choice made.’” Motor Vehicle Manufacturers Association v. State Farm Auto Mutual Insurance Co., 463 U.S. 29, 42-44 (1983). Courts should only invalidate agency determinations that fail to “examine the relevant data and articulate a satisfactory explanation for [the] action including a ‘rational connection between the facts found and the choice made.’” Id. at 43 (quoting Burlington Truck Lines v. United States, 371 U.S. 156, 168 (1962)). In this process DOE has rational grounds, and will not come across as failing to consider an important factor relevant to its action, such as the policy effects of its decision or vital aspects of the problem in the issue before it, or as failing to consider “less restrictive, yet easily administered” regulatory alternatives because it did so. Only then would the rules fail the arbitrary and capricious test. See.e.g., Ctr. for Biological Diversity v. U.S. Bureau of Land Mgmt., 698 F.3d 1101, 1124 (9th Cir. 2012). 138 Cin. Bell Tel. Co. v. FCC, 69 F.3d 752, 761 (6th Cir. 1995).
(16) That a respondent to a sexual misconduct Title IX complaint should cross examine his complainant carries such controversy that it has already split the Federal Circuits and is thus ripe for Supreme Court adjudication as now some hold that a student facing a he-said/she-said situation has a due process right to cross examine his complainant, see, e.g., Doe v. Baum, 903 F.3d 575 (6th Cir. 2018), while others say not so, see Haidak v. University of Massachusetts at Amherst, No. 18-1248 (1st Cir. August 6, 2019) available here: http://media.ca1.uscourts.gov/pdf.opinions/18-1248P-01A.pdf and still others say that if there’s a property interest—say the respondent’s ROTC career—the school cannot withhold the investigative report or other evidence from the respondent and the school cannot hold a sham adjudication hearing. Doe v. Purdue University, No. 17-3565 (7th Cir. June 28, 2019). We vigorously hope for and lobby to attain increases in Due Process concepts for Title IX respondents. See for example our comments on the up-and-coming changes to Title IX regulations from the Department of Education available here: https://www.studentmisconduct.com/news/which-standard-of-proof-do-schools-use-in-title-ix-sexual-misconduct-proceedings-and-did-devos-change-that and here:
https://www.studentmisconduct.com/news/2016/6/27/blog-post-04-harris
(17) That view elides context and remedy. A woman claiming her boss sexually harassed her, under Title VII, will get money, not the boss fired. Here women claiming a student sexually harassed them get to destroy the student’s career, not money. In addition, because the Title IX rules will limit what falls under Title IX to the most severe instances, it will make ever more sense for the respondent to those claims to both cross examine and have a presumption of innocence that inheres the clear and convincing standard.
(18) DOE is not required to include in the final rules a response to every comment received. Instead, DOE need only to respond to what the courts have characterized as “significant” comments. See Perez v. Mortg. Bankers Ass’n, 575 U.S. __, 135 S. Ct. 1199, 1203 (2015) (“An agency must consider and respond to significant comments received during the period for public comment.”). But see the slippery-slope of this approach: At least one court has described “significant comments” as “those which raise relevant points and which, if adopted, would require a change in the agency’s proposed rule.” Am. Mining Cong. v. EPA, 965 F.2d 759, 771 (9th Cir. 1992).