The New Title IX Regs, For Better And Worse

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.

21 thoughts on “The New Title IX Regs, For Better And Worse

  1. Hunting Guy

    Rudy Giulian.

    “When you tell me, you know, that he should testify because he’s going to tell the truth, and he shouldn’t worry, well that’s so silly because it’s somebody’s version of the truth, not the truth,”

    Reply
  2. orthodoc

    Thank you for taking one for the team and reading the entire megillah. Can you please confirm whether the document codifies the “school’s obligations” for an “equitable” investigation, as defined in its September 2017 Q&A on Campus Sexual Misconduct?
    In that document, the accused was granted the right to have: written notice detailing the specific section of the code of conduct allegedly violated and the precise conduct allegedly constituting the potential violation; a written report summarizing the relevant exculpatory and inculpatory evidence and timely and equal access to that information; sufficient time to prepare a response before any initial interview; the burden to gather sufficient evidence placed on the school; judgement from a person without actual or perceived conflicts of interest or biases but who has skills in analyzing and synthesizing all available evidence; and all rights or opportunities that a school makes available to the accuser.
    All things equal, i would prefer those rights to the right to limited cross exam, as even kangaroo courts can have cross, eg interrogation of rodney dangerfield by ned beatty in Back to School.
    And if I am allowed another 1980’s movie reference: we might doubt that the rights enumerated in that Q&A were made permanent, as we did not hear a scream with the sound of ultimate suffering from Catherine Lhamon and Russlynn Ali.

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      1. orthodoc

        $20.33 sent (my second contribution this year, but maybe paypal is wrong labeling this one a “donation”)

        Reply
        1. SHG Post author

          lol. That ain’t gonna buy you much, but short answer is that the devil in all of this is in the details. Does notification include not merely the “offense” charged and the policy it violated, but when, where, how it is alleged the offense occurred, all the necessary info that enables the accused to have a meaningful understanding of the accusations against him? What you read isn’t at all what I read, as I see glaring gaps that lack any of the requisite details to make them meaningful. Even worse, there’s no judge to rule on the adequacy of whether the regs are fulfilled at each step along the way.

          What happens when the evidence isn’t disclosed because the non-lawyer investigator deemed it irrelevant? What happens when the accuser provides conflicting accounts that undermine credibility, but the investigator provides only a summary that normalizes the conflicts so the accused never sees the source information? The ten day time limits will prove useful at times and detrimental at times, such as when they fall in the middle of finals and the accused is forced to choose between studying and passing and dealing with the complaint? These are the gaps that appear to my eyes because I’ve seen so many variations of fuck ups imaginable, and sweet words are no substitute for details.

          Reply
        2. btf

          I just made my $20.33 donation to match…. because dang that is funny.

          A couple hundred more people and you have a business model!

          Reply
            1. Skink

              Since it would be very hard to find an iron lung, the cost is likely far more than you expect. I ain’t building you a ventilator for $40.66.

              But that would be a starting tip for a few drinks in the Hotel bar. Of course the tab would have to go to the house, but why not? The Hotel denizens naturally self-distance, unless someone acts up and needs to be tossed onto Hudson Ave. If that happens, then hand-washing.

            2. SHG Post author

              The kids are going, “what’s an iron lung, anyway?” It’s my new name for Bowmore 18 with a bacon swizzle stick.

  3. B. McLeod

    So, the Clery Act delegates to the FBI the ability to expand “sexual assault” as it sees fit. No way that could go wrong.

    Reply
    1. SHG Post author

      The FBI’s definitions aren’t exactly limiting. They’re just generic descriptions, and they too have forsaken force in favor of consent. But then, they’re not actionable crimes, but merely reporting categories, as far as the Clery Act and the FBI are concerned. To use the defs here means there are no real defs.

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  4. Steve White

    My prediction is, after a couple months studying this document, the Title iX fanatics will develop a plan to overcome it, primarily by being good apparatchiks, taking over the disciplinary process, as they were already doing, and they will succeed at most of the schools which were already the worst due process deniers.
    As I understand it, DeVos could have rescinded the Dear Colleague letter without any process at all, since it had not gone through any public comment or other formal process before being issued. I think she should have done that, “The Dear Colleague Letter of April 4, 2011 is rescinded, it was issued wrongly by radical activists abusing their power”
    I can understand trying to develop a consensus and go forward with a plan people will actually want to follow, rather than an edict, but the over 100,000 communications against any change to the DCL, even before any new guidelines were proposed, rather than motivating her to compromise, should have made her see she was dealing with people who were not interested in, and indeed, not worthy of, any democratic process.
    I think she chickened out.
    The Way Out had always seemed obvious to me – issue a new DCL which, since it demands nothing of the schools, does not need to go through any public process, and merely states Title IX was never intended to require schools to police peer student to student sexual conduct, and states they have no legal liability for failing to do so, but if they do, fairness to men, including meaningful due process, is required by Title IX and will be policed by DOE.

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    1. SHG Post author

      Two thoughts: First, no matter how sound the procedures, it doesn’t cure inherent bias. If everyone involved remains true to their Believe All Women narrative, the process is merely performative and the outcome won’t change no matter how much the system appears to provide due process.

      Second, we’ve taken for granted that campus sex tribunals are a given, as if any tweaking of the system will make them viable. I don’t think it’s possible no matter what, and that Russlyn Ali and Cahterine Lhamon have won either way because this untenable system is now embedded in stone.

      Reply
  5. Jean

    These regs are not going to hold up when the DOE is sued over them for giving sex assault respondents more rights than respondents accused of non-sexual assault and other conduct code violations.

    Reply
  6. JEFFREY

    Having been through a campus star chamber hearing – I concur that lacking better definitions the regs will mean whatever any admin. deems them to mean.
    My proposal has been a state or regional hearing body for quasi-criminal conduct. It could be staffed by retired judges and attorneys or similar volunteers. It would resemble the hearing Jameis Winston was given — his case was heard by a retired FL supreme court justice. It takes years of practice for professions to become capable of being unbiased fact finders. Colleges will never be capable of delivering a neutral hearing body. They are staffed with raging SJWs and they are employed by the institution ‘they are protecting’.

    Reply
    1. SHG Post author

      The regs note that they would allow for the creation of regional bodies, but don’t require them. Provided it’s not merely a proxy for campus bias (which could well happen), it might be a far better approach plus take the onus off colleges to appease their most outraged students.

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    2. Bryan Burroughs

      Or, and stay with me here, we could let criminal conduct be handled by the criminal justice system, instead of a “quasi-judicial” extra system.

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      1. LocoYokel

        That could never be allowed, next thing you know you are letting males go free without completely destroying their lives. That is simply intolerable.

        Reply
        1. SHG Post author

          There are two discussion, one reflecting something closely related to reality and the other being pointless non-lawyer venting. Want to guess which belongs here?

          Reply
  7. Pingback: Due process advocates cheer overlooked changes to Title IX proceedings in DeVos rules | The College Fix

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