U.S. Secretary of Education Betsy DeVos. Photo: Gage Skidmorevia Wikimedia Commons.

Lawyers are in two minds about potential implications of U.S. Secretary of Education Betsy DeVos' move to draft changes to Obama-era policies for schools handling sexual misconduct allegations under the Title IX federal law.

While most attorneys favor concrete rules over the general guidance provided by the Obama administration, key issues such as jurisdiction, standard of evidence and equal protection divide them. Some say the rules will silence and intimidate victims, while others believe the proposal would provide due process for accused students facing potentially life-altering penalties.

“My chest was pounding,” said trial lawyer Andrew T. Miltenberg of Nesenoff & Miltenberg of New York after leaving a Title IX hearing on Sept. 6. “I thought I was in some sort of charade or show trial. And I could not believe, even though I should now be used to it, the abuses of process and the complete 'anything goes' atmosphere. As long as we have that, no one should be happy.”

The main issue, according to attorneys, like Miltenberg, involved in cases alleging sexual assault on campus: feeling they're participating in a “circus” of a hearing conducted by an “ill-equipped and ill-trained” investigative panel.

Click here to see how the proposed Title IX guidelines compare to the old.

'Two Forces'

Jeremy Mishkin of Montgomery McCracken Walker & Rhoads in Philadelphia.

Last year, when the U.S. Department of Education rescinded a 2011 Dear Colleague letter that had served as standalone guidance for universities and colleges investigating and pursuing sexual assault claims, many took that as a signal that new rules were coming.

“The intent behind [the letter] was to make it less difficult for a person complaining about a violation to get relief,” said Jeremy Mishkin of Montgomery McCracken Walker & Rhoads in Philadelphia.

But this, he said, caused a “dilemma.”

“People accused of these things quite often felt they were, for all intents and purposes, being charged with a crime,” Mishkin said.

According to Mishkin, students accused of sexual assault often ask whether they have the right to confront their accuser or to see the evidence against them.

“The answer is, in many cases, [is] 'No. You don't,'” the attorney said.

Mishkin called the Dear Colleague letter a “noble effort,” but said it might have conflated the notion of protecting a victim's mental and physical health with the adjudication process.

Read the 2011 Dear Colleague letter:

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Kelley Hodge of Elliott Greenleaf.

“You want to be completely supportive of the victim, but at the same time, as a society, we want those who are accused of acts that are criminal to have due process of law. Those are two forces that are very fundamental American ideals,” said Mishkin.

Elliott Greenleaf attorney and former Title IX coordinator for the University of Virginia Kelley Hodge said she finds the idea of giving schools the option of using clear and convincing standard of evidence “concerning.”

“Is that really fair and appropriate across the board?” Hodge asked. “It can create in my opinion levels of inconsistency and inequity that are going to potentially undercut the essence of what Title IX is supposed to be.”

'Kangaroo Court'

Boston criminal defense attorney Norman Zalkind of Zalkind Duncan & Bernstein, who's represented both complainants and respondents, is dissatisfied with what he sees as a widespread “presumption of guilt” in the Title IX arena.

“If somebody is sexually violated, attacked or harassed they should be protected, but there should be protections on both sides because you're asking for very serious punishments,” Zalkind said.

He calls the system a “kangaroo court” that puts young defendants on trial with little due process. Instead of the current process, Zalkind hopes for one requiring a “clear and convincing” standard of evidence.

“There's a bias. Students' lives have been ruined and their families have gone broke over this, so there should be better protections,” he said. ”This isn't like drinking on campus. This isn't like taking a drug or causing a little damage to the house. These are very serious charges.”

According to Zalkind, schools frequently suspend or expel the accused, and leave them with a record that can significantly hinder their academic and professional lives.

“A lot of times, they're talked to before they have a chance to seek counsel or an adviser, and they don't know what to say,” he said. “They're 18 years old. They've been babied by their parents and they're not ready for this.”