The proposed Title IX regulations, released on November 29, 2018, effectively serve as public notification that the U.S. Department of Education no longer intends to protect students who are victims of sexual misconduct. Trump appointee Betsy DeVoe, Secretary of the DOE, is responsible for the regulations that would lead to this result.

On December 10, 2019, in response to indications that the final regulations might not differ significantly from the proposed regulations, Democratic lawmakers introduced a bill to stop the DOE from implementing the changes contained in the proposed regulations.

Title IX of the Education Code is intended, in part, to prevent sexual misconduct that would effectively deny a student access to education.

The proposed rules would protect offenders from facing consequences for their actions, prohibit institutions from addressing a wide variety of sexual misconduct that is currently recognized as impairing a complainant’s right to education, and deter a would-be complainant from filing a complaint.

These proposals would make it significantly more difficult, and in some cases impossible, for victims of sexual misconduct to obtain assistance from an educational institution. Victims would be open to more invasive inquiries through disclosures and cross-examination than they would be if they were to testify as part of a criminal investigation. Depending upon the temperament of the institution at which the offence occurred, victims could end up receiving less assistance pursuant to Title IX than they would through criminal proceedings.

124,196 comment letters have been submitted in response to the Title IX proposed regulations.

The comments were overwhelmingly critical, although strong support was offered by Families Advocating for Campus Equality, Stop Abusive and Violent Environments, and the National Coalition for Men, along with some individuals who stated they or their children had been harshly penalized as a result of being falsely accused of sexual misconduct.

Commentators applauding the changes are generally concerned with the future of the accused. While FACE, SAVE, and NCMC each indicate they are concerned about male victims as well as males accused of sexual harassment, their comments with regard to male victims are an illogical jumble of thoughts and statistics. These organizations essentially argue that the regulations and most institutions suffer from gender-bias, focussing on female victims of sexual misconduct while failing to pay sufficient attention to the one man in 25 who is a victim of sexual violence. Although FACE acknowledges that there have been only a handful of Title IX cases in which women have been accused, the organizations still object to the implicit presumption made by many that offenders under Title IX would be male.

Despite highlighting statistics related to male victims of sexual harassment, the substantive comments from these organizations are wholly concerned with protecting the interests of the male harassers rather than the interests of victims of any gender.

These organizations point to the few instances were men have successfully sued their educational institution as a result of being disciplined for sexual misconduct. Despite these instances being extremely rare, they each opt to focus on the interests of the accused over the interests of thousands of students who are victimized by sexual misconduct.

Still not satisfied that accused males would be fully protected, FACE recommends additional changes, including allowing institutions to expunge notations that have already been made on transcripts regarding a finding of sexual misconduct and requiring institutions to discipline any complainant found to have made a false accusation of sexual harassment.

FACE further requests that the regulations be amended to provide that Title IX pre-empt all state laws relating to sexual misconduct (such as New York State’s Enough is Enough legislation) so as to effectively preclude both federal and state level protection for complainants.

Commentators who are critical of the proposals are relatively consistent in their objections. The key objections can be grouped into concerns about the revisions to scope, procedures, and institutional responsibility.

Scope

The change to the scope of behavior to be addressed by the schools is hugely significant. Under the proposed rules, victims of sexual misconduct that does not amount to sexual harassment would be left without any protection. For example, sexual exploitation, off-campus stalking, and online sexual harassment would be outside the scope of the new definition.

In many states, Title IX is the only meaningful redress that a complainant has for sexual misconduct that does amount to a criminal offence.

The proposed regulations would only apply to sexual harassment, which would be limited to sexual assault (rape, fondling, incest or statutory rape); unwelcome conduct on the basis of sex that is so severe, pervasive, and objectively offensive that it effectively denies a person equal access to an education program or activity; and provision of any aid, benefit or service conditional on participation in unwelcome sexual conduct with an employee of the institution.

A number of reputable organizations, including the U.S. Senate, comment that these foundational changes are inappropriate and would frustrate the objectives of Title IX. The Association of Independent Colleges and Universities in Massachusetts states that the new requirement to dismiss conduct that falls outside the definition of sexual harassment could result in a denial of equal access to education before any investigation occurs.

Under this new standard, “students would be forced to endure more extreme sexual harassment at school than employees must endure in the workplace.” — The American Civil Liberties Union

Key Procedural Provisions

The overarching rationale for the procedural and evidentiary changes that were made is to provide the accused with rights akin to due process. Penny Venetis is a Clinical Professor of Law at Rutgers Law School where she directs the International Human Rights Clinic. In November, 2018, she wrote, “Misrepresenting Well-Settled Jurisprudence: Peddling ‘Due Process’ Clause Fallacies to Justify Gutting Title IX Protections for Girls and Women,” which was published in the Women’s Rights Law Reporter. In the article, Venetis states, “the due process justification for the new guidelines is a smokescreen and lacks legal backing.” She further stipulates that, “the proposed regulations clash with well-settled due process principles” and that the DOE position is based on a single case which “is an outlier [that] has not been adopted by any other court.”

One of the most egregious changes is to effectively mandate the use of “clear and convincing evidence” standard of proof rather than the current standard of “on a balance of probabilities.” The regulations require a clear and convincing evidence standard to be applied if the institution uses this standard for any other proceedings, whether the use of such standard is required as a result of contractual negotiation, for example, pursuant to a negotiated settlement with unionized employees, or other legal provision.

This change to the standard of proof would raise the level of proof from just over 50 percent to at least 70 percent. Several commentators point out that the preponderance of evidence standard is the standard that is applicable in all civil rights litigation.

Legal Momentum notes that if a student disciplined under Title IX were to challenge the decision in court, that student would only need to prove by the preponderance of the evidence that the institution acted inappropriately. Similarly, the complainant could sue the accused and successfully receive monetary damages if she established her case on a balance of probabilities.

The ACLU states that the clear and convincing standard tips the scales against the complainant while the preponderance of evidence standard does not favor one side over the other. The Lawyers Club of San Diego notes that other disciplinary hearings that carry the same maximum penalties will be adjudicated by the institution using the preponderance of evidence standard.

The use of this higher standard of proof for incidents of sexual harassment underscores a destructive message — that “complainants of sexual assault should be treated with an extra measure of mistrust and skepticism.” — LCSD

Under the proposals the accused must be presumed innocent until a final decision is rendered. This means that, unlike the current rules, the accused cannot be required to make accommodations in order to protect the victim’s access to education until it has been proven by clear and convincing evidence that he sexually harassed the victim.

The regulations also require that at the outset of an investigation the accused be notified of the complaint; given details regarding the nature of the complaint, including the name of the complainant; and provided with some time to consider his response. This disclosure requirement could have a significant adverse impact on both a Title IX investigation and any criminal investigation that might occur.

During the investigation, the accused is to be provided with an opportunity to cross-examine the complainant. No rules of evidence are provided for in connection with this cross-examination. Combining the presumption of innocence, the disclosure requirement and the right to cross-examine without prescribed limitations provides the accused with far more protection than he would have if the complaint were handled through the criminal justice system. Conversely, the maximum penalty the assailant would face under the criminal justice system is substantially more severe than the maximum penalty he might face under Title IX.

Current Title IX regulations allow for the parties to try to address the complainant’s concerns through mediation. However, a complainant who is not satisfied by mediation can subsequently opt to take advantage of the formal complaint process. Under the proposals, the two processes would be mutually exclusive, so if a complainant were successfully pressured to engage in mediation, any right to a formal complaint proceeding would be forfeited. If a student were to opt for mediation, the Title IX burden on the institution would decrease substantially. This provides the institution with a strong motivation to urge a complainant to proceed via mediation.

Mediation characterizes sexual assault as a “mere misunderstanding between two individuals of equal power and authority” and “downplays the often abusive nature of the assailant’s behavior.” — California Women’s Law Center

The U.S. Senate shares this view and notes that mediation, “can exacerbate feelings of guilt or shame on the part of sexual assault survivors.” While mediation might be appropriate and effective for some instances of sexual misconduct, if Title IX is restricted to incidents of sexual harassment, it is unlikely that mediation would provide an outcome that would satisfy a complainant. However, it is quite likely that a complainant could fail to understand the consequences of agreeing to mediation and unintentionally waive the right to the formal complaint process.

Institutional Responsibility

The DOE sought to ensure that institutions were provided with clear rules as to when funding might be denied under Title IX, with a goal of only putting funding at risk only where an institution demonstrates deliberate indifference to a formal complaint by failing to adhere to prescribed requirements. Even under the less lenient current Title IX rules, funding has never been denied, including in the case of Michigan State University where hundreds of women were sexually assaulted. According, the DOE’s concern seems misplaced and a poor basis for reducing the obligations of institutions at the expense of victims.

Collectively, the changes to clarify the administrative requirements make it easier for an institution to fail to take meaningful action on matters of sexual misconduct and increase the probability that some complainants will never manage to understand and navigate the procedural requirements. As a result of these changes, complainants are highly likely to end up feeling betrayed by the system.

A full discussion of all of the provisions in the proposed regulations that would adversely impact victims of sexual misconduct is beyond the scope of this article. The totality of the comment letters and published articles concerning the proposed regulations establishes clear and convincing evidence that since Betsy DeVos became the U.S. Secretary of Education the actions of the DOE are intended to all but eliminate Title IX protection for victims of sexual misconduct, despite there being no clear legal precedent to support such regulatory change.