It took 2033 pages to try to create the appearance of acknowledging every cry, claim and demand, real or imagined, considered by the Department of Education before finalizing its new regulations for Title IX sex hearings. If you’ve got a lot of time to kill, and aren’t put off by the prospect of little payback for your investment, there are some nuggets in there worthy of note.
But what is mostly notable is that after three years, thousands of lives and screams of outrage that persist, most of which are false or absurdly hyped, it’s neither as big a deal, nor as much of a change, as anyone would have it. What becomes quickly clear is that the new regs are horse designed by committee, an effort to smooth over ruffled feathers, to provide some facsimile of the accouterments of due process that its predecessor, the 19-page 2011 Dear Colleague Letter, was deliberately crafted to overcome, and otherwise punt the hard problems, such as the impossibility of creating a viable definition of “consent” which was tacitly adopted, to colleges to figure out for themselves.
The DoE created a “major provisions” cheat sheet for those with the good sense not to slog through its full version. which is largely sufficient not because of its thoroughness, but because of the shallowness of its changes. There are two primary concerns, the first being its changes in the definition of what comes within its ambit and the second being the conduct of hearings.
The definitional changes are, despite claims to the contrary, unsatisfying. There are three categories of conduct falling within the regs definition of “sexual harassment”: Quid pro quo, “unwelcome conduct” that a reasonable person would find so “severe, pervasive and objectively offensive” as to deny a person equal educational opportunity and “any instance of sexual assault (as defined in the Clery Act*), dating violence, domestic violence or stalking (as defined in VAWA).” While the DoE used the correct language from the Supreme Court’s Davis decision, it expressly does not apply to any physical sexual conduct. While it does provide some degree of First Amendment protection to speech, it has no applicability to, say, a “good morning” kiss.
But it’s the hearing changes that are most controversial. The one thing the new regs clearly accomplish is the elimination of the Single Investigator Model, where a Title IX investigator gathers evidence, reaches a conclusion as to guilt and either decides the outcome or presents it to a tribunal as an unchallengeable fait accompli.
At the college level (although not necessarily at the K-12 level), the regs will require a live hearing, cross-examination of parties with certain limitations and memorialization of the hearing.
For postsecondary institutions, the school’s grievance process must provide for a live hearing:
– At the live hearing, the decision-maker(s) must permit each party’s advisor to ask the other party and any witnesses all relevant questions and follow-up questions, including those challenging credibility.
– Such cross-examination at the live hearing must be conducted directly, orally, and in real time by the party’s advisor of choice and never by a party personally.
– At the request of either party, the recipient must provide for the entire live hearing (including cross-examination) to occur with the parties located in separate rooms with technology enabling the parties to see and hear each other.
– Only relevant cross-examination and other questions may be asked of a party or witness. Before a complainant, respondent, or witness answers a cross-examination or other question, the decision-maker must first determine whether the question is relevant and explain to the party’s advisor asking cross-examination questions any decision to exclude a question as not relevant.
– If a party does not have an advisor present at the live hearing, the school must provide, without fee or charge to that party, an advisor of the school’s choice who may be, but is not required to be, an attorney to conduct cross-examination on behalf of that party.
– If a party or witness does not submit to cross-examination at the live hearing, the decision-maker(s) must not rely on any statement of that party or witness in reaching a determination regarding responsibility; provided, however, that the decision-maker(s) cannot draw an inference about the determination regarding responsibility based solely on a party’s or witness’s absence from the live hearing or refusal to answer cross-examination or other questions.
– Live hearings may be conducted with all parties physically present in the same geographic location or, at the school’s discretion, any or all parties, witnesses, and other participants may appear at the live hearing virtually.
– Schools must create an audio or audiovisual recording, or transcript, of any live hearing.
On the one hand, the requirements that a live hearing be held with cross-examination, although not by the accused, somewhat permitted is a significant step forward. On the other, it leaves huge gaps unaddressed, both as to the balance of the process, the capacity to conduct meaningful hearings and, most notably, the failure to address students unable to afford counsel to represent them at the hearing. Having a law student or a French lit prof assigned as adviser is no substitute for competent counsel.
And even for students who can afford counsel to conduct a competent cross, it remains limited by the grasp and bias of the “decision-maker” as to what will be permitted and, frankly, what will matter to a lay and likely biased “judge.” The regs require the decision-maker to be trained to be impartial, but saying so doesn’t make it so.
From the perspective of accuser activists, this procedural change will “silence survivors,” as they predict it will chill women’s willingness to come forward to accuse males of sexual misconduct if they know they will be required to appear at a hearing and be cross-examined. The alternative, of course, is that they be believed without question, which would, from their perspective, encourage women to accuse, whether truthfully or not, without fear of anyone challenging or doubting their accusation.
As for the burden of proof, the new regs allow schools to choose between preponderance and clear and convincing evidence, which was deemed too high a burden under the 2011 DCL. Whether the burden of proof will have any significant meaning to non-lawyer decision-makers remains a mystery, but given courtroom experience, it’s highly unlikely to be significant.
Will these regs have the impact anticipated, by providing sufficient due process to turn these sex tribunals into at least somewhat legitimate proceedings? Will it exacerbate the problem for male accuseds who can’t afford counsel? Will it limit the willingness of women to make legitimate accusations of sexual harassment or serve to dissuade the false accusers who will no longer be believed no matter what?
it’s not that there aren’t positive changes here, most notably the elimination of the Single Investigator Model, but it’s by no means as good, or as bad, or as significant, as many had hoped and as many will claim. Time and experience will tell whether these changes will serve to turn these kangaroo courts into at least somewhat viable enterprises, but innumerable gaps remain and a slightly better bad system is still a bad system.
*The Clery Act defines “sexual assault” as:
The term “sexual assault” means an offense classified as a forcible or nonforcible sex offense under the uniform crime reporting system of the Federal Bureau of Investigation.