THE LEAD-UP To The 2019 Proposed Rules On Title IX

Title IX of the Education Amendments of 1972 seeks to prevent sex discrimination on any campuses that receive federal financial funding. The provision is simple: 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.

When it comes to sexual harassment on campus, Title IX has had a rocky path. In 1980 an argument was successfully made that sexual harassment constituted sex discrimination under Title IX. In that case, Alexander v. Yale  the plaintiffs sought the adoption of grievance procedures for sexual harassment, not monetary damages. As a result, most universities went on to adopt grievance procedures. In 1997, the Clinton-era Office for Civil Rights (OCR), released guidance solidifying that sexual harassment of students by their peers, school employees, or third parties is a form of sex discrimination and, therefore, is prohibited under Title IX. In 2011 the Obama-era OCR cautioned schools that if they didn’t expand their efforts in preventing sexual violence on campus, they would be at risk for losing federal funding.

By way of the 2011 “Dear Colleague” letter, the OCR explained that Title IX requirements on sexual harassment cover sexual violence, and provided guidance that outlined specifically what schools should do to address sexual violence.  Schools were encouraged to quickly hire and train Title IX coordinators who would be made responsible with adjudicating Title IX cases. Additionally, the coordinators were required to use the relatively lenient “preponderance of evidence” — meaning “more likely than not” — standard when determining whether someone is guilty of sexual harassment or violence.  “I think that the 2011 Dear Colleague letter was, in concept, a great idea,” said Andrew Miltenberg, an attorney who specializes in the field of campus assault due process. “But I also think that the specific delineations in it were not particularly well thought out, and I think that schools completely botched carrying it out.”

Up until 2011, most schools were only prepared to deal with disciplinary matters regarding honor code and conduct code violations, said Miltenberg. They didn’t have the staff in place to adjudicate complicated sexual violence cases. Schools acted quickly to hire Title IX coordinators. “Where do they look?,” asked Miltenberg. “Well, a natural place to look is victims’ rights advocates, domestic violence counselors, rape counselors, social workers — all people who are well-intentioned, but nonetheless have a very particular view of these cases.” Title IX coordinators with such a background are often trained in a “trauma-informed approach,” which essentially means that they assume the complainant is telling the truth. And if there are inconsistencies in their statements, it is attributable to post-traumatic stress, which causes repressed memories.

If you are the accused, however, “you’re starting the process with the investigators already believing everything the complainant says, and giving him or her a free pass on changing the story,” Miltenberg said. “And if you make one slip-up in your recollection, regardless of how immaterial it is, that undermines all of your credibility. So there really is an incredibly uphill battle for the accused to fight the minute a complainant starts talking.”

The Obama-era guidance resulted in an increase in the number of lawsuits filed by students accused of sexual violence on the basis of lack of due process. There are currently almost 500 lawsuits filed by accused students in state or federal courts against their schools, according to KC Johnson.  According to the New Yorker, nearly half of the lawsuits brought by students accused of sexual violence against their school have resulted in favorable court rulings or settlements with the schools. In a conversation with The Atlantic, U.S. Supreme Court Justice Ruth Bader Ginsburg confirmed the accused students’ right to due process in Title IX cases. Ginsburg said. “There’s been criticism of some college codes of conduct for not giving the accused person a fair opportunity to be heard, and that’s one of the basic tenets of our system, as you know, everyone deserves a fair hearing.”

In September 2017, soon after U.S. Secretary of Education Betsy DeVos took office, the Department of Education withdrew the Dear Colleague letter and the 2014 Q&A on the grounds that they ignored notice and comment requirements, created a system that lacked basic elements of due process, and failed to ensure fundamental fairness.  In November 2018, the Department of Education introduced a revised Title IX proposal — one that would allow colleges and universities to use a stricter standard of evidence when determining if the accused is guilty, tighten the definition of sexual harassment, and restrict the types of incidents that can be investigated. The proposal has not yet gone into effect.

While individuals may disagree on the details of how to best combat sexual violence on college campuses, almost everyone agrees that the accused has the right to be heard. This right — the right to due process — is enshrined in the Constitution.