Read this article on Title IX and Due Process
The New Face of Title IX Due Process
Daniel Kees
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Education Department’s proposed rule could transform procedural protections under Title IX.
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Sexual harassment and other forms of gender-based violence occupy a larger segment of the
national conversation than ever before. Repeated revelations of harassment by famous men have
dominated the news cycle over the past year, but a major part of the larger national conversation
has also focused on sexual misconduct on college campuses.
Recently, the Trump Administration took a major step to revise federal policy related to campus
sexual assault.
In November 2018, the U.S. Department of Education proposed a rule that would change how
schools respond to sexual harassment and assault under Title IX, the federal law prohibiting sexbased discrimination in any federally funded school. The period for public comment on the
proposed rule ended last week.
The proposed rule would take the novel step of articulating a definition for Title IX sexual
harassment, which the Education Department considers consistent with Supreme Court case law:
unwelcome conduct so “severe, pervasive, and objectively offensive” that it denies a person
equal access to an education. Schools would need to dismiss formal complaints alleging harms
that fail to meet the Education Department’s definition of harassment.
Last year, the Education Department rescinded Obama-era guidance documents advising schools
on a different way to handle sexual misconduct and other Title IX violations. Under the Obama
Administration standard, schools—not law enforcement—had the responsibility to investigate
sexual assault allegations. Although this responsibility would continue under the proposed rule,
Education Secretary Betsy DeVos stated that the Obama guidance did not offer sufficient due
process protections for persons accused of sexual assault.
Unlike Obama-era guidance, the Trump Administration’s proposed rule would require formal
due process protections for the students involved. Although schools must still provide a
meaningful response to all reports of sexual harassment, only formal complaints would trigger
the requirement that they investigate. This distinction would give schools greater discretion in
handling informal complaints of sexual harassment.
Schools would have to provide formal written notice to the accused that specifies the alleged
misconduct, and the schools’ grievance procedures would include a presumption of innocence
until the school makes a determination of responsibility. Students would be given the opportunity
to review all evidence—which cannot be copied or downloaded—used in the investigative
report, and students would have at least 10 days to submit optional written responses prior to the
report’s filing. The Education Department’s proposal specifies that schools would not be able to
restrict either party’s ability to discuss matters of the case, which means that schools could not
issue a “gag order” to keep proceedings confidential. This action could pose problems for
students wanting to keep the case private.
If an investigation is initiated, the school—not the students involved—carries the burden of proof
and the burden of evidence gathering to determine responsibility. The on-campus Title IX
Coordinator or a school-appointed investigator would interview the students and witnesses,
collect documentary or other types of evidence, compile a report, and perform all other
investigation-related duties. This person, however, could not also serve as the decision-maker or
as part of a decision-making panel. In the proposed rule, the Education Department rejected a
“single investigator” or “investigator-only” model for the Title IX grievance process, reasoning
that the separation of investigative and decision-making duties would create a fairer process.
Under the proposed rule, schools could apply the clear and convincing evidence standard or the
Obama-backed preponderance of the evidence standard. The lower preponderance standard,
however, would only be available if the school already uses it for non-sexual harassment conduct
violations that carry the same maximum disciplinary penalties. Schools must use the same
standard for complaints involving students and employees, including faculty, a move the
Department says will lead to fairer outcomes, as students have traditionally had fewer formal
protections than faculty in misconduct investigations.
The proposed rule would also require colleges and universities to conduct a live hearing that
could include cross-examination. Subject to school approval, the students’ chosen advisors, who
may be attorneys, would perform the cross-examination. The proposed rule would require that an
advisor conduct the questioning because it bars personal confrontation between the students, who
can request that cross-examination take place with students in separate rooms, allowing the
accused to watch live via technological means. The proposed rule would also require that “rape
shield” protections—which generally prohibit questions about an accuser’s sexual history—be in
place during the hearing proceedings.
After reaching a decision, schools would issue a written decision outlining the investigation’s
findings and evidentiary support, the decision-making rationale, the appropriate sanctions, and
information about the school’s appeals process. In the proposed rule, the Education Department
emphasized that all students must be treated equitably throughout the process and that all
remedies must be designed to “restore or preserve access” to the school’s educational program or
activity.
If schools comply with these grievance procedures, the proposed rule would create a safe harbor
against a finding of “deliberate indifference” in court, reducing the viability of a lawsuit against a
school for its handling of a Title IX investigation.
Proponents of the proposal applaud what they consider its transparency and focus on
accountability. Secretary DeVos said in a press release that the proposal’s goal is to make Title
IX grievance proceedings “more transparent, consistent, and reliable.” She also noted that
protecting the accuser and the accused “are not mutually exclusive ideas.”
Opponents of the proposed rule argue that the focus on protecting accused students would create
barriers that deny equal protection to those who report sexual harassment. For example, they
point to a provision that allows students to submit to an informal resolution, such as a mediation,
at any point before a responsibility determination—which Obama guidance ruled out due to its
potential chilling effect on reporting assaults. The Education Department, however, says this
options gives schools more flexibility in handling sexual harassment matters.
Critics also contend that the proposed rule creates “procedural and technological challenges” for
schools—which vary in their capacities to investigate Title IX complaints—to comply with the
grievance procedures. Many critics argue that the lack of a gag order might hurt accusers’
reputations on campus and that hearings might re-traumatize assault victims.
Some opponents also lament that the rule would completely absolve schools of misconduct
occurring off campus at places like fraternity parties—a likely setting for campus sexual assault.
The Education Department denies that the rule would make such a geographic distinction, and it
affirms that school liability will be based on the particular facts of the case—such as whether an
off-campus event was paid for by the school or occurred on property the school owns.
The proposed rule has also drawn criticism by individuals and groups that view the change as
harmful to student safety. The Society of Women Engineers (SWE), for example, said that Title
IX is critical to the “persistence and ultimate success” of women in the academic setting, who
now make up a majority of college graduates. SWE warned that inadequate protections would
lead to a continued shortage of engineering talent in the United States. Former Vice President Joe
Biden tweeted that the proposal would “discourage sexual assault reporting and investigations,”
and he urged people to voice their concerns through the public notice-and-comment period that
accompanies proposed rules.
Now that the comment period has closed, the Education Department will begin the process of
reviewing public input as it works to finalize the rule.
Tagged: Barack Obama, Department of Education, Donald Trump, Due Process, Proposed Rule,
Title IX
question
Discuss any of the following questions:
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How have different Presidential administrations influenced the procedures for Title IX
actions involving sexual harassment and assault?
Do you see a need to protect federal agencies from political influence or is it proper for
agencies to implement the President’s policy preferences?
Why do you think the Department of Education used notice and comment rulemaking,
rather than guidance documents, enforcement discretion, or other means to change how
schools respond to Title IX claims?
Discussion: Part 2
Does the FDA have the authority to regulate drugs intended for lethal injection, or other devices
used for execution (such as electric chairs, gallows, firing squads, and firearms), as “drugs” or
“devices” under the FDCA? How would the FDA Tobacco case apply to this question?
Factors to consider:
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Definitions of “drug” and “device” in the FDCA
FDA’s “efficacy” and “no harm” requirements
Whether FDA would have to ban execution drugs and devices
In thinking about how the FDA Tobacco case would apply to this question, consider the
following:
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If a product can’t be safely used for a therapeutic purpose but also can’t be banned, does
it fit under the FDCA’s regulatory scheme?
Is it relevant that the FDA claimed it did not have the authority to regulate drugs/devices
used in capital punishment before 2017?
Does it matter whether a particular substance is safer or more effective than other means
of execution?
In the tobacco case, the Supreme Court reasoned that Congress had repeatedly confirmed
that tobacco products would remain available. How would that reasoning apply in the
context of capital punishment and availability of the death penalty?
If the FDA doesn’t have jurisdiction regulate lethal injection drugs, what are the implications for
importing drugs from other countries for this purpose? Are there any safety concerns?
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