Last week, the United States Department of Education issued new regulations under Title IX concerning how schools must respond to allegations of sexual assault and sexual harassment. Predictably, the regulations have been slammed by groups such as the National Women’s Law Center, which has said that they will “make it harder for students who have experienced sexual harassment to come forward and to get the help that many need.” Given President Trump’s record of disturbing comments about women, including boasting of sexually aggressive behavior, it’s easy to believe that this is an accurate description of regulations set forth by his administration. However, these regulations in fact require a reasonable and balanced approach to a serious problem. They are not about protecting rapists from the consequences of their actions. Rather, they are about protecting innocent men falsely accused of sexual offenses from having their lives destroyed for something that they did not do. The regulations balance this with the important need to prevent sexual assault and punish those who are in fact guilty of this heinous crime.
To understand why these regulations are necessary, we need to turn the clock back nearly a decade to April 4th, 2011. On that date, the Department of Education sent a letter to the president of every college and university in the nation. Known as the “Dear Colleague” letter for its opening line, it outlined new requirements on how schools must respond to allegations of sexual assault on campus in order to be in compliance with Title IX, a federal law requiring schools to extend equal opportunities to all students regardless of their sex. There was an implied threat that schools would lose their federal funding if they did not comply. The issuance of this letter was of questionable legality. A federal law known as the Administrative Procedures Act requires that the public be given notice before any new regulations go into effect with ample time for citizens to submit comments indicating why they support or oppose the proposed regulations and suggesting modifications. The required notice-and-comment process was bypassed for the “Dear Colleague” letter, depriving the public of the opportunity to weigh in.
There are good reasons why many Americans would have opposed the letter, had they been given the opportunity to comment. Under it, schools were required to establish their own internal tribunals, completely separate from the criminal justice system, in which to investigate and adjudicate allegations of sexual assault on campus. These tribunals were generally staffed by school personnel, not criminal justice professionals, and had the power to expel a student, even if the alleged victim declined to have a police investigation conducted or if the police investigation found that there was insufficient evidence to prosecute. Cross-examination, a right guaranteed to all criminal defendants by the Sixth Amendment, was discouraged by the “Dear Colleague” letter. Schools could prohibit students from having an attorney present during their hearings. They were encouraged to provide an appeals process under which a finding that a student was not responsible for sexual assault could be overturned, violating the Fifth Amendment protection against double jeopardy, under which a defendant cannot be put on trial a second time for the same crime after being acquitted. Perhaps most disturbing is that the letter required schools to do away with the notion of innocent until proven guilty. Instead, they were ordered to use the “preponderance of the evidence” standard, under which a person could be found responsible for sexual assault if the tribunal had as little as a 50.01 percent certainty that he had in fact committed the crime. More recently, many schools have moved to a so-called single-investigator model under which one person simultaneously serves as prosecutor, judge, and jury—a clear conflict of interest.
The schools dutifully implemented the tribunals, and students began to be expelled as a result of their findings. Hundreds of lawsuits have been filed against schools by students claiming to have been innocent. In time, the campus tribunals would come to face criticism from some unlikely sources. The National Center for Higher Education Risk Management, a legal consulting firm that supported the “Dear Colleague” letter, issued an open letter that documented numerous problematic cases it encountered. They recognized that, in practice, schools were often “holding the male accountable in spite of the evidence—or lack thereof—because they think they’re supposed to, and that doing so is what [the Department of Education] wants.” RAINN, the nation’s largest non-profit dedicated to preventing rape, issued an open letter to the White House in 2014 calling for campus tribunals to be de-emphasized because “they lack protections for the accused while often tormenting victims.” They urged the Obama administration to “ensure that colleges and universities treat allegations of sexual assault as they would murder and other violent felonies” by addressing them within the criminal justice system.
The way in which the tribunals have made a mockery of due process is not the only concern with them. They have also threatened free speech. Take, for example, the case of Laura Kipnis, a professor at Northwestern University who wrote an article in the Chronicle of Higher Education criticizing new policies related to professor-student dating. As Kipnis recounts in a later article entitled “My Title IX Inquisition,” she was brought before her university’s tribunal for sexual harassment on the accusation that the mere act of expressing her political opinions in the article created a hostile environment for the school’s women. While she was ultimately found not responsible, placing someone’s career in jeopardy over the course of a months-long investigation for exercising her First Amendment rights can have a chilling effect on free speech. Furthermore, there is the question of whether a man who had written the same article would have received the same favorable outcome in the end. Kipnis herself believes that her success before the tribunal was as much because of her sex as because she was in the right:
When it comes to campus sexual politics, however, the group most constrained from speaking—even those with tenure—is men. No male academic in his right mind would write what I did. Men have been effectively muzzled, as any number of my male correspondents attested.
So, what are these regulations that have been set forth as a solution to this problem? The new regulations continue to require schools to investigate and adjudicate sexual assault allegations so that perpetrators can be removed from campus even if the victim chooses not to press charges. However, schools are also required to institute a number of much-needed reforms to bring the process in line with the norms of due process that are expected of a democratic society.
Here’s how the process would work under the new rules. A victim of sexual assault or sexual harassment who wishes to initiate a proceeding will file a complaint with the school’s Title IX coordinator. The alleged perpetrator will be informed of the charges against him. At this point, the school may implement interim measures to protect the alleged victim, such as changes to course schedules, no-contact orders, increased security patrols, or in extreme cases, the temporary removal of the alleged perpetrator from campus. These measures are solely to ensure the safety of the alleged victim and may not include anything intended to punish the alleged perpetrator, who has not yet been determined to be responsible.
The school will then investigate the complaint and produce a written report that must be provided to both parties at least 10 days prior to the hearing. When the hearing takes place, both parties may be accompanied by an advisor of their choice, who may be an attorney. The school must provide an advisor to any party who would not otherwise be able to obtain one. The parties will have the right to cross-examination, but questions will be asked by the advisors rather than by the parties themselves, so that victims will not have to be interrogated by their assailants. The person adjudicating the case must be different from the person investigating it; the single-investigator model is now banned. Both must have received training that does not rely on sex stereotypes. Any person who has shown to be biased against either accusers or the accused is excluded from fulfilling either of these roles. In other words, those who believe that women who claim to be rape victims are all lying and those who believe that false allegations never happen would both be excluded. If the accused is found responsible, then punitive measures will then be put in place. This may include expulsion.
Much of the criticism of the regulations centers around the requirement for cross-examination, which the critics believe will deter victims from coming forward. While there may be some truth to this concern, it is important to recognize that the purpose of cross-examination is to expose false accusers, not to intimidate actual victims. It is something that we require in our society before someone can be punished in order to protect the innocent. We require it of all victims of crime and witnesses to crime, not just women or victims of sexual offenses. Even victims of attempted murder and parents who have lost their children to murder are subject to cross-examination in a court of law. Furthermore, the regulations include provisions to minimize the burden of cross-examination upon victims. Schools are required to allow the parties to be in separate rooms with the hearing conducted by videoconference if either party requests it. There is also a rape shield provision that prohibits arbitrary questions about the alleged victim’s past sexual history.
The regulations are not perfect. There are still some ways that they could be improved. For example, while schools are no longer required to use the “preponderance of the evidence” standard, they are not prohibited from using it either. The parties must be provided with advisors, but these advisors need not have legal training. If a student from a poor family that cannot afford an attorney is accused of raping a student from a wealthy family that can, the accused may be at a significant disadvantage. What is at stake here is not small. A student who is wrongly expelled can expect to have severe difficulty pursuing an education elsewhere or procuring employment. In some respects, it may be even worse than having a criminal record. Many states have “ban the box” laws that prohibit most employers from asking applicants whether they’ve been convicted of a crime, but asking about an applicant’s academic record is still fair game. No one should face these sorts of consequences unless they have been afforded the benefits of legal counsel and proven guilty by a more stringent standard than 50.01 percent certainty.
Overall, though, these regulations are a huge step forward from what had existed previously. It is for this reason that organizations such as the Foundation for Individual Rights in Education and the Independent Women’s Forum have endorsed them. Donald Trump may be the worst imaginable spokesman for justice on this issue, but his Department of Education has nonetheless managed to set forth a highly reasonable policy that adequately balances the need to prevent rape and hold those who perpetrate it accountable with the need to protect the innocent from false allegations. Young men across this country who have done nothing wrong should not be thrown under the bus out of anger at the president, however well-deserved that anger may be. The innocent deserve better.
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