U.S. Department of Education in Washington, D.C.

On Nov. 16, 2018, the U.S. Department of Education issued proposed regulations to supplement Title IX of the Education Amendments of 1972 in response to a dire need for clarification of the gender discrimination statute that has evolved so far from its beginnings. Title IX regulations have never before specifically addressed sexual harassment, sexual assault or the concept of due process. 34 C.F.R. §106. One would never realize this given how extensively schools have been deciding cases of campus sexual misconduct for years.

Within hours of the announcement of the proposed regulations, victim advocates were demonizing them as “turning back the clock,” “making schools less safe” and “turning campus hearings into courtroom proceedings.” These reactions are premature and, perhaps, misguided. Before the naysayers denigrate the proposed rules, I would encourage them to ask themselves: How can we have a fair result without a fair process?

As a higher education lawyer representing male, female and transgender students in over 200 colleges and universities across the country, I have sat on both sides of the table during a school Title IX proceeding, and in the courtroom. A fair system benefits all sides and ensures the integrity of the results no matter who prevails.

Let's examine the provisions requiring more work during this 60-day notice-and-comment period, and those worth applauding.

Definition of Sexual Harassment

High on the list of criticisms is the Department's “narrowed” definition of sexual harassment, as “severe, pervasive and objectively offensive.” But there is little reason to complain since the definition is grounded in U.S. Supreme Court precedent, Davis v. Monroe Cty. Bd. of Educ., 526 U.S. 629 (1999), that clarified the meaning of sexual harassment within the context of Title IX. That said, all parties could benefit from more illustrative examples of what “severe” and “pervasive” means. The proposed rules should take a page from the Department's own prior guidance documents, which provided specific examples such as, making sexual propositions, performing sexual gestures or touching oneself sexually in front of others, and spreading sexual rumors or rating other students as to sexual activity or performance. The Department also explained in its 2001 Revised Sexual Harassment Guidance, that even one egregious incident does not need to be persistent to create a hostile environment, such as an attempt to grab a female student's breasts.

Scope of Jurisdiction

One of the most surprising additions to the proposed rules is taking schools “off the hook” from policing sexual misconduct that takes place during study abroad programs. It seems the Department has taken an overly literal interpretation of the statute's requirement that harassment is perpetrated against “a person in the United States.” But a student who is out-of-the-country through his/her enrollment at an institution within the United States should not be exempt. Others fear that limiting schools' jurisdiction to conduct occurring within an “education program or activity” will exempt off-campus misconduct. However, the Department clarified that geography will not be the only factor in its analysis of “education program or activity.” Moreover, nothing in the rules prohibits schools from exercising jurisdiction over such claims or offering supportive measures to complainants in such cases.

Choice of the Standard of Evidence

A troubling mainstay of the current interim guidance is allowing schools to choose which standard of evidence to employ in these cases. To use the Department's words, sexual assault is a “serious subject.” As such, it deserves a higher standard of proof because school tribunals lack many due process safeguards that are found in courts. While I agree that the preponderance of the evidence may be appropriate for sexual harassment claims, we do not want to conflate sexual harassment with sexual assault, which is, by definition, more serious and deserving of a higher standard. “Preponderance of the evidence,” as schools define it, means “more likely than not.” In civil courts of law, preponderance of the evidence is applied in cases where the harm to society of an erroneous finding is approximately equal whether the error favors the plaintiff or defendant. In re Winship, 397 U.S. 358, 371 (1970) (Harlan, J., concurring). “Clear and convincing evidence,” as defined by our courts, means highly probable and is applied in cases where the risk of loss is relatively high, including deprivations of individual rights. Santosky v. Kramer, 455 U.S. 745 (1982). Schools should be required to determine it was “highly probable” that a student committed sexual assault, before that student is expelled.

Despite these criticisms, the proposed rules offer noteworthy improvements that will restore fairness to campus Title IX tribunals for the benefit of all.

Complainant Control of the Process

Believe it or not, the proposed rules stand to give Complainants more control over the process than they ever had before. The psychology of reporting sexual assault is very complex, and complainants need the ability to decide for themselves what is necessary to heal. Under the proposed regulations, complainants may decide to file a formal complaint, or request supportive measures, or potentially engage in mediation; whatever they decide is best for themselves. Complainants can now obtain assistance from schools without being forced into a formal proceeding unless they so choose.

Detailed Notice

Once a formal process begins, schools are now required to provide detailed notice to respondents and an opportunity to prepare before any initial interview. To those who decry the idea of making it “easier” for the respondent to defend him/herself, I urge you to take a step back and consider, for the moment, that when a professor gives her students the details of the assignment before grading them, that's considered a “no brainer.” Now can you imagine schools not notifying a student of the details of sexual assault allegations levied against him/her that might result in the student's expulsion, yet asking him/her to appear and discuss the unknown allegations? As absurd as that sounds, it is more common than you think. Notice is a necessary component of due process and requiring it improves the integrity of Title IX proceedings. Starishevsky v. Hofstra University, 161 Misc.2d 137 (Suffolk Cnty., Sup. Ct. 1997).

Live Hearings

Doing away with a single-investigator model for determining Title IX allegations is long overdue. Under this model, a single (or two) individual(s) is tasked to investigate, prosecute, and determine the outcome of a Title IX case. The inherent risk of bias is inescapable and there are no checks and balances. Live hearings will guarantee that a separate fact-finder(s) is able to fully assess credibility with live testimony, and will allow a proper forum for cross-examination. See Prasad v. Cornell University, 2016 WL 3212079 (N.D.N.Y Feb. 24, 2016); Doe v. Brandeis University, 177 F. Supp. 3d 561 (D. Mass. 2016).

Cross-Examination

Critics complain that cross-examining complainants will have a chilling effect on victims who may be traumatized by facing alleged perpetrators. But there are ways to address critics' concerns without dispensing with this important fact-finding tool. Respondents shouldn't ask questions themselves. Third parties, such as advisors or lawyers, should ask the questions. The Department recognizes that parties should not have to sit in the same room for cross-examination and will allow the use of separate rooms so long as testimony can be heard simultaneously. The right to cross-examination has been heralded by courts across the country as a cornerstone of “basic fairness,” especially in sexual assault disciplinary cases that turn on the issue of credibility. See Starishevsky, 161 Misc.2d 137; Doe v. Baum, 903 F.3d 575 (6th Cir. 2018); Doe v. The University of Southern Mississippi, No. 2:18-cv-0015-KS-MTP (S.D. Miss. Sept. 26, 2018); J. Lee v. The University of New Mexico, et al., No. CIV 17-1230 JB/LF (D.N.M. Sept. 20, 2018); Doe v. Regents of Univ. of Cal., 28 Cal. App. 5th 44 (2d Dist. 2018).

Reasoned Decisions

Finally, the Department has called for “reasoned” decisions specifying findings of fact and rationale for the result. Gone are the days of vague, one-line decisions causing head-scratching over what a hearing board relied upon to arrive at a potentially life-altering outcome. See Brandeis University, 177 F. Supp. 3d 561 (failure to provide student access to investigative report prevented him from effectively appealing the special examiner's findings); Doe v. Alger, et al., Docket No. 15-cv-00035 (W.D. Va. Dec. 23, 2016). Reasoned decisions not only provide a more reliable basis for appeal, but increase the odds that the parties will actually accept the outcome.

The national debate of the “pros” and “cons” of the proposed rules is just underway, and while there is more work to do, we will be in a much better place than the status quo.

Kimberly C. Lau is the practice leader of the college discipline practice at the law firm Warshaw Burstein. She represents both sides in Title IX cases as well as faculty and has been involved in handling nearly 200 Title IX matters in her legal career. Lau may be reached at [email protected].