This past year, the United States Department of Education and Secretary of Education Betsy DeVos proposed changes to the current regulations regarding Title IX that effectively aim to afford those accused of sexual assault on campus more due process in the university-handled investigation regarding the alleged sexual assault. Soon after, in response to these proposed changes, both the Department and DeVos personally came under severe criticism from a number of groups, surprisingly including the bastion of civil rights, the ACLU. Since the proposed regulations are still in the public comment period, they do not carry with them the force of law yet, and may be revised somewhat before being published in their final form. As such, it is important to understand the current regulations regarding Title IX, to not only know what happens when a sexual assault is reported on campus, but to also see why reform is needed.
Current Title IX Regulations
The current regulations regarding Title IX to which colleges and universities must adhere carry several peculiar features. For one, even calling them “regulations” may be a little misleading. Instead, these rules are more accurately described as “strict guidelines.” This is because the current guidelines never underwent the proper procedure for becoming a federal regulation, unlike the process currently being used by the Department of Education and DeVos by which they have been opened up to such harsh public criticism. Instead, the guidelines were promulgated in a 2011 memorandum sent to all universities and colleges receiving federal funding titled the “Dear Colleague Letter.” Again, this letter starkly departed from the normal notice and comment process by which formal regulations are made. This letter, on the other hand, held the colleges and universities hostage with the threat of losing all federal funding for noncompliance with the guidelines included in the memo. In response, colleges and universities across the nation changed their student codes of conduct and policies regarding sexual assault, with some going beyond the requirements of the “Dear Colleague Letter” as to rule out any possibility in a reduction of funding.
Standard for Acts Considered “Sexual Wrongdoing”
While the guidelines proposed in the “Dear Colleague Letter” aimed to provide more rights and an increased sense of safety for those that suffer sexual assault on campus, the guidelines instead eroded the rights of those accused in four key ways. First, the guidelines definition of sexual wrongdoing is severely overinclusive, going well beyond the typical definitions that include rape, sexual assault, and sexual harassment. Instead the guidelines opted to include any conduct that is unwelcomed, even if such conduct is not hostile. The unwelcomed nature is not known to the accused, or the unwelcomed nature of the conduct arose after the encounter. Under this entirely overbroad definition of sexual wrongdoing, even a class discussion about sexuality that offends a student may be considered sexual wrongdoing.
Due Process Failures of the Current Guidelines
The three other key ways in which the rights of the accused have been eroded in hopes of providing more rights for those that suffer an alleged sexual assault find roots in failures of due process. One such failure of due process revolves around notice given to the accused. Some schools, in hoping to comply with the 2011 guidelines, refuse to provide the complaint to the accused student. Others refuse to provide notice of the factual basis of the charges against the accused student to the accused student. Others refuse to provide the evidence gathered or the identities of those witnesses testifying against the accused. On top of that, some schools simultaneously refuse to provide all of the above when determining whether the accused is responsible for the act alleged. These failures are in stark contrast to the most basic rights of those against whom a complaint has been filed in any other court system throughout this country, civil or criminal. Yet the universities and colleges routinely abate these basic rights in hopes of a “more efficient” determination of responsibility.
Another failure in due process rears its head as a conflict of interest. Having the individual investigating the allegation also act as the ultimate decision-maker creates an obvious conflict of interest. This investigator/decision-maker is almost always from the university’s or college’s Title IX office, further compounding the conflict of interest in two ways. First, the investigator/decision-maker may feel pressure to avoid a finding of “not responsible” in fear that the school could lose federal funding. Second, on most campuses, the Title IX officer in charge of investigating and decision-making also acts as an adviser for the accuser throughout the entire process. This sort of triple-conflict is unheard of in any area of law. No defendant, whether criminal or civil, would agree to a process where the opposing counsel is the only individual free to perform a reasonable investigation, where the evidence found by the opposing counsel need not be shared with the defendant, and where the opposing counsel in turn acts as the sole decision-maker. Yet this very process is the one by which most, if not all, Title IX investigations and decisions are made.
Finally, the use of a “preponderance of the evidence” standard in making the responsible/not responsible determination only acts to exacerbate the other three failures discussed above. The law uses different standards of proof in various types of cases: civil cases also require a showing of guilt by a preponderance of the evidence (typically regarded as 50.01% certainty), while criminal cases require the highest standard — “beyond reasonable doubt.” So while the use of a preponderance standard is not unheard of in the legal realm, areas in which the standard is used provide other protections for defendants that attempt to “level the playing field.” For example, in civil cases: neutral, independent decision-makers are used; both parties are afforded the right to legal counsel; hearings are conduct in which the rules of evidence are in place; and the losing party has a right to appeal all aspects of the decision. As detailed above, these same protections are not in place for students accused under Title IX.
The failures of the current guidelines are apparent and clearly detrimental to the rights of those accused of sexual assault on campuses nationwide. But while the system in place is flawed, by no means should schools forgo attempts to punish violations of their codes of conduct, including sexual assault. Schools require the ability to punish students who violate the code of conduct, as not all violations will amount to a criminal act (for example, cheating on an exam). What is important is that the punishments administered by the universities and colleges must only be handed down when the student is given a fair say in the matter. This is not the case under current Title IX guidelines.
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Discredited Faulty Sexual Assault Research
The implementation of the current concerning guidelines can largely be attributed to initially-dubious and since-debunked research regarding sexual assault in general. A 2002 paper by David Lisak, a University of Massachusetts-Boston psychologist, claimed that an astonishing 90% of assaults on college campuses were perpetrated by serial rapists who remained undetected on their campuses. These serial rapists, Lisak claimed, premeditated and meticulously planned their attacks before committing them. He also found that they had likely committed multiple acts of violence before being detected. Lisak used a video based on a transcript of an actual interview with a college rapist as evidence in his paper. These “unedited transcripts” were later shown to be a highly edited transcript of an interview from three decades earlier with a subject that was clearly an outlier from the typical case (a fact documented by Lisak’s own publication).
Since publishing the paper, the stats within have gone on to be widely accepted as true, despite numerous conflicting studies from peers. Perhaps this is because having an identifiable perpetrator allows people to believe that simply removing certain people (i.e., those “undetected serial rapists”), sexual assault as a whole may be removed from campus. After all, it is much more difficult to envision redesigning the college campus, replete with adolescent drinking and drug use, poor judgment, and peer pressure, than simply removing those suspected “serial rapists.” In the interim, Lisak developed training materials that are based on his research. These materials have been used as educational training materials for a number of groups who handle sexual assault cases, including judges, prosecutors, law enforcement, and military special investigation personnel. This research has also permeated into the current guidelines governing Title IX on campus, and is seen most through the policies enacted by the respective universities and colleges. These policies create a guilt-presuming disciplinary procedure by which Lisak’s research is given credence.
False Reports, Conflicting Results and Lawsuits against Colleges
Many sources claim that data shows the percentage of false reports for claims of sexual assault are rare, with most studies showing anywhere from 2% to 10% of all reports being unsubstantiated. However, one study claims that upwards of 40% of campus sexual assault claims are false. In any event, this does not mean that false reports never happen. While due process for defendants is important in all cases, due process for defendants is imperative in those cases where the report is false. Due process stands as the only form of defense from an overpowering crusade on the part of an individual or the government, in the form of a university’s Title IX office, from running roughshod over the individual accused.
Due Process in “He Said, She Said” Cases
One need not look far to find a case in which a male student is accused of sexual assault and subsequently banned from the higher education campus without anything more than the story of the accuser serving as evidence. In Doe v. Baum, a case out of the University of Michigan, a male student was accused of sexual assault by a female student he had met at a campus party and with whom he later engaged in sexual intercourse. The male and female each told their own stories on what happened that evening, and the investigator in charge of the case found each story equally credible. Based on the equal credibility, the investigator determined a finding of not responsible was in order. The female appealed, and a three-member panel found the male responsible. The male was then forced to withdraw from class and leave campus, being only 13.5 credits short of graduation.
On appeal to the Sixth Circuit, the court held that when the determination of responsibility comes down to a “he said, she said” scenario, such as the one present, the accused must be afforded the right to cross-examine both the accuser and those witnesses against him. This, the court reasoned, was the only viable method for fairness to be exacted, as cross-examination is “the greatest legal engine ever invented” for uncovering the truth. The court stopped short of giving the accused themselves the right to cross-examine, but required that an adviser or advocate for the accused must at least be allowed to conduct a cross-examination by which inconsistencies may be uncovered and demeanor to be assessed. The holding in Doe v. Baum severely threatens the single-investigator model used by many universities, and the holding is now binding throughout the Sixth Circuit, which includes the states of Ohio, Michigan, Kentucky and Tennessee.
Suits Against Colleges and Universities
Other cases have brought universities under more liability for their findings of responsibility. A study by United Educators shows that from 2011 to 2015 there was a “significant increase” in the number of claims brought by alleged sexual assault perpetrators against their colleges and universities. All claims in the study involved males as the alleged perpetrators, and half of those claims involved a student who was expelled as a result of the investigation. An astonishing one-third of the claims involved students who were seniors that were expelled in the months leading up to their expected graduation. Such is the case for Caleb Warner, a former student at the University of North Dakota. In February 2010, Warner was accused of sexual assault via a report filed to both the University’s Title IX office and the Grand Forks Police Department. Merely a week later, the University found Warner responsible for the alleged sexual assault and suspended him from campus for three years based on the report filed by the accuser and using the preponderance of the evidence standard. While Warner was being banned from campus because of the finding of responsibility, the Grand Forks County District Court formally charged his accuser with “false information or report to law enforcement officers,” a Class A misdemeanor, and issued a warrant for her arrest.
The disparity of the outcomes can be attributed somewhat to the different standards of proof implemented by Title IX offices and the criminal justice system, respectively. With Title IX offices using “50.01% or more” preponderance standard, they are opening the door for an increase in reports of less plausible cases. This is by design: colleges and universities want to encourage students to report an act they believe amounts to sexual assault, and rightfully so. Encouraging through the use of the preponderance standard does not require, however, the abandonment of various forms of due process. If universities continue to refuse the most basic rights regarding due process while simultaneously inviting meagerly plausible reports, they will continually open themselves up to law suits from those accused of sexual assault.
Looking Forward: Title IX Reform
As mentioned previously, the Department of Education, under Secretary Betsy DeVos, have proposed several new regulations regarding Title IX. These proposed regulations aim to bolster due process in a variety of ways, addressing many of the concerning aspects of the guidelines implemented through the 2011 “Dear Colleague Letter.”
Redefining “Sexual Wrongdoing”
For one, the definition of sexual wrongdoing would follow the definition established by caselaw, most of which was decided under Title VII employment discrimination cases. Under the proposed regulations, sexual wrongdoing would be “any unwelcome sexual conduct that is sufficiently severe or pervasive to interfere with the victim’s educational opportunity.” Opponents say that the sexual harassment or assault would need to be repeated several times before a claim could be brought. This is unfounded, as even one act of sexual assault or harassment can be severe or pervasive enough to interfere. Using this definition would also receive the added benefit of already-developed caselaw regarding sexual assault.
Allowing Cross-Examination
The regulations would also essentially codify the holding from Doe v. Baum as federal law by requiring cross-examination to be conducted by an adviser for the accused. However, this right to cross-examine goes both ways, opening up the accused to answering questions posed by the accuser about the story of events presented by the accused. Many opponents of the proposed regulations cite a concern for situations in which the accused intimidates the accuser during the cross-examination or humiliates the accuser by bringing up past sexual encounters as a reason the proposed regulations should not be implemented. However, the cross-examination would prohibit personal confrontation by the accused and would be subject to “rape shield” protections that prevent prying into an accuser’s past sexual behavior.
Updating Procedural Requirements
The new regulations would also bolster due process considerations throughout the process. At the outset, the regulations would require the school to provide written notice of the allegations to the accused, as well as an equal opportunity to review all evidence collected. In terms of investigation and decision-making, the regulations would do away with the single-investigator model used by many colleges and universities. Instead of having one individual preside as the investigator, the decision-make, and the adviser of the accuser, those functions would need to be broken up to separate individuals. While ideally those functions would be conducted by university personal independent of the Title IX office entirely, a reasonable request is that the decision-maker not be associated with the Title IX office, although these regulations do not yet require such independence. The decision-maker must maintain a presumption of innocence towards the accused, and the standard of proof required would need to match the standard of proof used in other code of conduct violation cases. Finally, if the school allows for appeal of the decision for either the accuser or the accused, the same right of appeal must be extended to the other as well.
Bipartisan Support for Procedural Safeguards
In a statement made in support of the proposed regulations and coordinated by the group Stop Abusive and Violent Environments, which was ascribed to by nearly 300 professors, lawyers, law enforcement and military personal, strong bipartisan support for these various due process safeguards was made apparent. A survey conducted by the Bucknell Institute for Public Policy showed that out of 1200 responses: 81% said that accused students should have the right to be informed of the charges against them; 61% said that accused students should have the right to cross-examine their accusers; 67% said that students accused of crimes on campus should enjoy the same legal protections that they would receive in a court of law; and 71% said that accused students should be punished based on a “clear and convincing” standard. Survey information is shown below.
|
All Respondents |
Democrats |
Republicans |
Independents |
|
| Students accused of sexual assault on college campuses should have the right to know the charges against them before being called to defend themselves |
81 |
80 |
91 |
81 |
| Students accused of sexual assault on college campuses should have the right to cross-examine their accusers |
61 |
58 |
70 |
60 |
| Students accused of crimes on college campuses should receive the same civil liberty protections from their colleges that they receive in the court system |
67 |
65 |
77 |
67 |
| Students accused of sexual assault on college campuses should be punished only if there is clear and convincing evidence that they are guilty of a crime |
71 |
67 |
80 |
73 |
While these results indicate strong bipartisan support for regulations such as those proposed by the Department of Education, such has not been the initial reaction. Many have deemed the proposed regulations an attack on sexual assault victims, or women as a whole. This is simply false. The regulations aim to provide fairness to all students, both the accusers and the accused. This fairness will only be achieved with implementation of regulations that provide due process for the accused. Treating accusations of sexual assault with proper due process aims to reinforce the credible nature of those accusations by allowing a determination to be made through a fair process. At the moment, the guidelines fail to provide basic protections for the accused, and therefore fail the system as a whole.
How this has Affected Nebraska Students
Berry Law Title IX attorneys have defended students and faculty at the University of Nebraska, Creighton University, and University of Nebraska Omaha who have faced sanctions as severe as expulsion and termination for alleged sexual misconduct. In some instances the Title IX investigator found the allegations to be without merit prior to a formal hearing. However, in some cases students and faculty felt they were denied fundamental due process to meaningfully challenge the accusers’ allegations.
While Title IX reform will provide new protections to students and faculty members, the accused must still walk a tightrope in fighting the allegations. Title IX misconduct allegations can turn into more serious criminal charges. The danger is that students fighting to stay in school stumble into criminal charges that might not have otherwise been pursued. When that happens, the accused faces bigger threats that being kicked out of school. Sometimes Title IX sex assault allegations result in criminal rape charges carrying possible felony convictions, mandatory sex offender registration, and prison time.
Fortunately accused students and faculty have the right to consult with an attorney prior to speaking with a Title IX investigator or the police. Unfortunately, most are unaware of this right and it is not until after they are penalized that they realize they had this right.
