This spring, the coronavirus pandemic has upended college and university life, as campus classes, dormitories, and social activities have been abruptly displaced by online instruction. As exams and graduation ceremonies proceed virtually this month, some schools are announcing plans to cancel or delay the fall semester or to run it partly or entirely online. On May 6th, amid this chaos and uncertainty, Betsy DeVos’s Department of Education issued its regulations on Title IX, which impose new legal requirements on how schools must conduct their discipline processes for sexual harassment and assault.
Immediately, prominent civil-rights attorneys expressed outrage. Catherine Lhamon, the chair of the U.S. Commission on Civil Rights and the assistant secretary for civil rights in Obama’s Education Department, that DeVos is “taking us back to the bad old days . . . when it was permissible to rape and sexually harass students with impunity.” Fatima Goss Graves, the president and C.E.O. of the National Women’s Law Center, , “We refuse to go back to the days when rape and harassment in schools were ignored and swept under the rug.” In a statement, Nancy Pelosi the new regulations “callous, cruel and dangerous, threatening to silence survivors and endanger vulnerable students in the middle of a public health crisis.”
日本一本一道经典视频It was unclear, however, precisely what aspects of the regulations were so extreme and alarming. Uncharacteristically for the Trump Administration, the Education Department, in crafting the regulations, engaged with a large range of public comments and concerns—from schools, advocates for survivors, and advocates of due process—and the regulations reflect that engagement. They are not exactly as I would wish, but they clarify the rights of both victims and the accused in a way that is likely to lead to improvements in basic fairness. The suggestion that even the most controversial provisions of the regulations allow rape with impunity speaks to a disturbingly large gap between reality and rhetoric on the topic—one that is particularly important to address, so students do not get the false sense that they should not bother to report assaults.
Title IX, passed in 1972, prohibits sex discrimination by schools that receive federal funding. In past decades, the Education Department has established, in a series of guidance documents, that sex discrimination includes sexual harassment, which in turn includes sexual assault, and that schools must address those offenses as a matter of sex equality. In 2011, the Obama Administration issued what is known as a “Dear Colleague Letter” to the nation’s colleges and universities, amid troubling reports of a prevalence of sexual assault on campuses and growing activism by students, who decried their schools’ neglect of the problem. The letter told schools to “take immediate action to eliminate the harassment, prevent its recurrence, and address its effects.” One of its concrete instructions was that schools must use the “preponderance of the evidence” standard (that is, a greater-than-fifty-per-cent chance that a claim is true) rather than a higher standard, such as “clear and convincing evidence,” to determine whether an incident of sexual harassment or assault occurred.
More than any specific commands, the government’s threat to withdraw federal funding from schools that did not comply with its Title IX guidance caused schools to attempt to please the government, by devising new practices, policies, and procedures that aimed to make it easier for victims to report assaults and to prevail in campus complaints. Soon, some advocates of fair process, among them law professors at Harvard (myself included), the University of Pennsylvania, and Cornell, raised concerns that the pressure to protect victims had led to an overcorrection: accused students were facing expulsion or suspension without fair procedures to defend against disciplinary charges. In many cases, accused students were not being given the complaint or identities of witnesses, and not being shown the evidence or the investigative report. Since 2011, hundreds of accused students have sued their schools for using unfair disciplinary procedures, and have . Courts have held that, just as it is sex discrimination under Title IX for schools to treat female victims of sexual assault unfairly, it can also be sex discrimination under Title IX to treat males accused of sexual misconduct unfairly.
In 2017, DeVos announced the launch of a rule-making process on Title IX and withdrew the Obama-era guidance on sexual violence. The following year, the agency issued日本一本一道经典视频 a proposed rule, which emphasized procedural fairness. Then, over the past two and a half years, it considered more than a hundred and twenty thousand comments from the public on the rule before releasing its final regulations—and also for the choices the agency made. The regulations will become legally binding on August 14th, in time for the new school year.
The new regulations free schools to do some things that previously were prohibited or understood to be disfavored. The Obama Administration clearly stated its belief that compliance with Title IX required the use of the preponderance standard for sexual-harassment cases, because any higher standard would, by design, tilt toward the accused. The new regulations allow schools to choose between the preponderance standard or the higher “clear and convincing evidence” standard, which would demand heavier proof to find that the accused is responsible. But, because schools are not required to shift away from their current use of the preponderance standard, it will be surprising if many do. Prior guidance had discouraged schools from using informal resolution, such as mediation, for sexual-assault allegations, but the new regulations allow schools to offer the option, as long as the accused is not an employee, both parties voluntarily agree to it, and the process is led by a trained facilitator. There is a legitimate worry that schools could pressure victims into informal processes, which cost less than formal ones. But many victims who might not report sexual misconduct, owing to a reluctance to unleash a lengthy investigation or a harsh penalty, may be more willing to seek the school’s help because of the availability of an informal option. And many accused students, who might fight the acceptance of responsibility in an adversarial or punitive framework, may be more willing to give a desired apology and make amends.
The permission to use informal methods poses something of a counterbalance to the over-all increase in procedural formality that the regulations prescribe. Though the Trump Administration’s agencies are generally known for deregulatory impulses, the Education Department has in some ways taken the opposite tack here, imposing more elaborate obligations than before. The most basic is that schools must employ a presumption of innocence, on which the Obama-era guidance was silent. Many schools have adopted the principle that they “start by believing” the alleged victim. That assumption may now be illegal. Many schools have also been using a streamlined “investigator-only” process, in which one person, often a Title IX administrator, acts as both investigator and decision-maker: that person interviews witnesses, examines evidence, and decides whether the accused is responsible for the alleged misconduct. The new regulations prohibit that, on the view that it is fairer to separate the roles of investigation and adjudication. Many schools have not used a live hearing in front of the decision-maker as part of their disciplinary process, possibly because of its costliness and a desire to avoid stressful confrontation, but the new rules require colleges and universities to provide a live hearing, and to allow parties and witnesses to participate virtually if they wish.