Part Two in a Two-Part Series
Proposed new Title IX regulations purport to help students who experience sexual harassment and assault, but predominantly help schools and those accused of sexual violence instead. Since Secretary of Education Betsy DeVos first floated her plan to roll back the Obama-era policies, which we describe in detail in Part One of this Series, the Department has expressed a purported interest in helping survivors of sexual violence in schools. But the regulations they propose make clear that their concerns lie elsewhere (and what they say is not to be trusted, in any event). Justia columnist Michael Dorf questions whether the Department of Education even has the power to implement these regulations, while we continue here with our critique of their substance. Our conclusion: They promise to make a serious problem worse.
Redefining Sexual Harassment to Cover Less, Exclude More
As we discussed in Part One, the proposed regulations set a disturbingly low bar for institutional compliance in responding to sexual harassment. But they also drastically rein in the very definition of “sexual harassment.” For decades, the agency has defined sexual harassment under Title IX as unwelcome sexual conduct that is severe or pervasive enough to create a hostile or abusive educational environment. The proposed regulation would narrow that definition to include only that conduct that is severe and pervasive, and objectively offensive enough to effectively deny a person equal access to the recipient’s education program or activity.
The clear intent is to lift any obligation on institutions to respond to any but the most egregious instances of sexual harassment. Indeed, a complaint about anything falling short of that definition is to be dismissed under the institution’s Title IX grievance procedure–perversely, denying students recourse to an institutional process that might stop harassing behaviors from becoming even worse.
This redefinition would create an unjustified difference between its treatment of sexual harassment and other forms of discriminatory harassment prohibited by law. Harassment based on race or disability, for example, would continue to be governed by the current, more inclusive standard for creating a hostile educational environment. Woe to the students who experience multiple forms of intersecting harassment and have to disentangle the strands of bias that trigger different levels of institutional responsibility based on different criteria for the severity of harm.
The apparent driving force behind the agency’s proposal to tighten the definition of sexual harassment is two-fold: to save costs by narrowing the field of conduct to which institutions must respond; and to protect a broader range of speech and conduct from institutional (and federal government) oversight. Neither rationale is persuasive. Costs are not saved, but shifted. While institutions may realize cost savings from uninvestigated sexual harassment that creates a hostile environment but does not rise to the level of effectively denying access to education programs, this is a cost that will be borne instead by the persons subjected to the hostile environment. But the Department of Education is not a neutral, beancounter. It is the agency charged with implementing laws designed to prevent and remedy discrimination in schools. It is contrary to the spirit of Title IX to prioritize institutional cost savings, if any, over that educational harm to students.
Likewise, there is no legitimate First Amendment or academic freedom protection afforded to unwelcome sexual conduct that creates a hostile educational environment. Beyond raising the straw man of campus P.C. police, the Department points to no evidence that legitimate speech and academic activity has been chilled by the definition of a sexually hostile environment that OCR has enforced for over two decades—and one that is operative in virtually all public and private sector workplaces by virtue of Title VII.
Equating Those who are Sexually Harassed with Those who are Accused of Sexual Harassment as Victims of Sex Discrimination
The proposed new regulations traffic in a false equivalence that is supported by neither law nor logic. The regulations provide, under the proposed new standard, that a school’s deliberately indifferent treatment of a student who complains of sexual harassment constitutes discrimination on the basis of sex. That sexual harassment constitutes a form of intentional sex discrimination has been beyond dispute since the Supreme Court declared it so in 1986, under Title VII, and in 1998, under Title IX. But the proposed regulations then take a stunning leap and assert that a school’s unfair treatment of the accused student in its grievance process also amounts to sex discrimination against the accused student. There is simply no basis for this conclusion. That turn of the tables, framing accused students subjected to an unfair process as victims of sex discrimination, is a huge departure from sex discrimination law.
Although male students who have claimed that they were wrongly disciplined for sexual harassment have sued their schools under Title IX, courts have generally rejected those claims without proof of animus or discriminatory intent against males as a class. Claims that male plaintiffs were denied a fair process (such as the lack of notice, an impartial decision-maker, and an opportunity to present evidence) have (sometimes rightly) succeeded in stating claims for due process violations and/or breach of contractual promises. But courts have not equated the failure to provide a fair process to students accused of sexual misconduct with sex discrimination against men. This type of false equivalence is explained only by DOE’s desire to reduce protections for sexual harassment survivors—the very people protected by the statute the agency is charged with implementing. This move then sets the stage for the procedural directives that follow in the proposed regulations. It also creates pressures on institutions to worry more about being investigated by OCR for sex discrimination against respondents than for sex discrimination against complainants. If it is sex discrimination against the accused student to subject him to an unfair process, but only sex discrimination against the complainant if her complaint is met with deliberate indifference, then siding with respondents is the less perilous path toward Title IX compliance. Such a result turns Title IX on its head.
On Presumptions and Proof Standards
One of the more controversial aspects of the now-rescinded 2011 guidance was the agency’s directive to educational institutions to use the preponderance of the evidence standard (POE) in resolving contested allegations of sexual assault. This directive grew out of OCR’s experience investigating Title IX complaints against institutions that used a higher “clear and convincing” (CAC) evidentiary standard in resolving sexual assault allegations to place proof of sexual assault out of reach for complainants, resulting in no accountability and no reason for complainants to trust the process. As OCR explained in the 2011 guidance, the POE is the standard typically used in civil matters, the one used by OCR in its determination of whether a hostile environment existed, and the only standard that holds the credibility and interests in the outcome of the competing parties in equipoise.
Nevertheless, the preponderance standard has been a major target of the Obama OCR critics, and the new proposed regulations override the former directive, and then some. Under the proposed regulation, institutions may choose either the POE or the CAC, but with the added restriction that they may only choose the POE if they use the POE for other conduct code violations that carry similar penalties. There is no equivalent restriction on schools choosing the CAC for sexual harassment proceedings even if they use a lower proof standard for all other student conduct violations. It is a one-way ratchet.
In addition, the proposed regulation requires schools to apply the same proof standard to student sexual misconduct under Title IX that they use for resolving complaints against employees, including faculty. This will pose a problem for schools that would like to continue using the POE for student sexual harassment if they must use a CAC standard to discipline tenured faculty (the standard the AAUP has urged on colleges and universities for faculty discipline and which some unionized institutions have incorporated in collective bargaining agreements with institutions). Schools in that situation will likely be forced to use the CAC for student sexual harassment if this proposed regulation is adopted.
For good measure, in addition to the forgoing constraints on the governing proof standard, which strongly tilt toward restricting schools from using the POE, the proposed regulations throw in a “presumption” that favors the accused student. A proposed provision in the new regulations would require institutions to include in their Title IX grievance procedure a “presumption” that the accused student is “not responsible” for the alleged misconduct. How any presumption, favoring either the complainant or the respondent, can be part of an “equitable” grievance procedure is not explained.
Additional Deterrents to Reporting Sexual Assault: Cross-examination and Warnings about False Reports
All of the foregoing changes signal an overriding concern for the students accused of sexual harassment in relation to the students complaining of it, and will likely have a chilling effect on complainants from coming forward. But two additional provisions seem particularly likely to chill reporting.
First, for institutions of higher education only (one of the rare places where the proposed regulations set different rules for elementary and secondary schools, which may, but are not required to, have a live hearing, and hence may avoid this requirement), the students must be permitted to cross-examine one another, to be conducted by their advisor of choice, who may be an attorney. The cross-examination is to be conducted at a live hearing, although it must be done by video conference in separate physical locations at the request of either party. For a survivor of sexual assault, being subjected to cross-examination by an attorney or other advocate who is skilled in drawing out inconsistencies and undermining credibility can feel like a re-victimization compounding the trauma of the initial event. Nor is it so clear that cross-examination is more likely to further the search for the truth than having the parties give their questions to a hearing examiner who poses the questions to the parties. By taking this choice away from colleges and universities, the proposed regulations will create a notably more hostile process for complainants for a questionable gain in fairness.
To be sure, the law on due process requirements with respect to cross-examination in such proceedings is rapidly evolving. A recent circuit court decision ruled that constitutional due process necessitates an opportunity for the accused student, or his advocate, to cross-examine the complaining student in a university disciplinary proceeding involving sexual misconduct allegations. However, that decision is anomalous; the vast majority of courts that have reached the issue have not required cross-examination at a live hearing to comply with due process, as long as there is a meaningful opportunity to have questions posed by a hearing examiner. By taking sides on this split, and siding with the minority view at that, the Department is proposing a uniform standard likely to discourage sexual assault survivors from bringing a complaint. Ironically, requiring cross-examination will likely have the greatest chilling effect on those persons most traumatized by the underlying incident.
Second, the notice provisions would require institutions to inform the parties of any provision in the institution’s code of conduct that prohibits knowingly making false statements. Given that sexual assault is already under-reported, this kind of provision risks sending potential complainants a message that they could be disciplined for reporting sexual harassment if their allegations are not believed. One reason why sexual assault survivors do not report to an authority figure is the fear of being disbelieved. That (legitimate) fear can only be exacerbated if survivors have reason to fear not only that the institution will side with the accused, but that they themselves could be disciplined for bringing forward an accusation of sexual assault that they could not prove.
The Myth of the False Accuser
Taken together, the proposed changes strike a single overarching theme: that the biggest problem with sexual assault on campus is that students (mostly men) are at risk from being falsely accused by other students (mostly women) of sexual assault. This culturally ingrained skepticism of women claiming sexual assault is not backed up by evidence. The most rigorous studies on sexual assault reports continue to show very low levels of false accusations (2-8%), and certainly no higher rates of false reporting of sexual assault than for any other allegations of serious wrongdoing. And yet, the narrative driving the proposed regulatory changes is that men have become the victims of women’s capricious misgivings about sex. In the final analysis, Jackson’s flippant and baseless remark, in which she attributed 90% of campus sexual misconduct allegations to regrets about drunk sex, may have had more staying power than her retraction.