FOUR REASONS to Support the Department of Education’s Title IX Rewrite
A huge number of comments has greeted Education Secretary Betsy DeVos’s proposed rewrite of the unfair Title IX Obama-era regulations often used in hearings against men on campus. Four comments are unusually important.
Cross-Examination: The first, prepared by Patricia Hamill (who has handled many lawsuits from accused students, including the cases that yielded the powerful Brandeis and Notre Dame opinions) and Penn Law professor David Rudovsky, drew signatures from several lawyers who also have handled lawsuits filed by accused students. The comment strongly defended the need for cross-examinations to adjudicate Title IX cases. They noted the importance of the rule’s recognition that unfair processes could constitute gender discrimination against either party—an “essential corrective to the view that Title IX allows (or should even be interpreted to require) procedures that are biased in favor of ‘victims.’” The comment highlighted the dangers of “trauma-informed” training—which, in too many cases, has prompted adjudicators to essentially presume guilt. It is important that training not create ‘presumptions’ that the alleged conduct occurred or that a complainant’s account of the incident must be true.”
All the Evidence, Please: FIRE, a longtime critic of the one-sided Obama-era procedures, issued a lengthy, thoughtful comment —As with the Hamill/Rudovsky comment, FIRE stressed the importance of the regulations’ cross-examination provision, but also urged the department not to limit the participation of students’ advisors just to the questioning process: “Active participation of advisors [throughout the investigation and hearing] is crucial because the stakes during campus proceedings are extremely high.”
The Harvard Law Plan: Few academics have more credibility on Title IX issues than Harvard Law professors Jeannie Suk Gersen, Nancy Gertner, and Janet Halley. The Suk/Gertner/Halley comment criticized the proposed regulations on definitional questions, but strongly endorsed the need for the government to mandate a fair process for both sides. The Harvard Law professors did urge the Education Department to mandate the Harvard Law School model rather than attorney-directed cross-examination.
The ACLU Flip Flop: The final noteworthy comment came from the ACLU. While the ACLU’s comment was very critical of DeVos in many respects, the organization abandoned some of the ‘believe survivors’ tweet thread’s approach by mostly embracing the need for a fair Title IX process. Departing from the position embraced by Democratic attorneys general and legislators, the comment unequivocally endorsed a hearing with cross-examination: “Cross-examination is an essential pillar of fair process.”
There was a broad area of disagreement between the FIRE and Hamill/Rudovsky comments on the one hand and the ACLU/Harvard Law comments on the other. The former two comments largely supported the definitional elements of the regulations (definition of harassment, safe harbor provisions, limiting language about college responsibility for adjudicating some types of off-campus activity). The latter two comments were strongly critical of DeVos’ efforts on these issues. The regulations’ key elements, in short, come in the procedural rather than the definitional realm; and on those questions, these four comments are mostly in agreement in the need for more robust procedural protections for accused students.
mindingthecampus.org By KC Johnson
