Fulfilling a promise made more than two years ago, Secretary of Education Betsy DeVos announced sweeping new regulations in early May designed to ensure there would be a fairer system henceforth when colleges and universities find it necessary to adjudicate sexual-assault allegations. The new rules, DeVos argued, would make it possible to “continue to combat sexual misconduct without abandoning our core values of fairness, presumption of innocence, and due process.” This shift represents an effort to take a more balanced approach in the debate about the intersection between Title IX, the nondiscrimination law passed in 1972, and the problem of campus sexual assault.
The controversy erupted on April 4, 2011, when then Vice President Joe Biden and Education Secretary Arne Duncan announced the release of the Obama administration’s “Dear Colleague” letter. The 19-page document, prepared by the Department of Education’s Office for Civil Rights (OCR), featured a novel interpretation of Title IX. It declared that the act gave the Department the authority to order universities to change the procedures they used when adjudicating sexual-assault claims.
The substantive changes authorized both by the “Dear Colleague” guidance and a 2014 follow-up made a guilty finding more likely. They included discouraging any form of cross-examination of an accuser and the mandated use of an accuser-friendly standard called “preponderance of the evidence”—according to which guilt could be established with only a 50.0001 percent degree of certainty—rather than the “clear and convincing evidence” standard used by many schools. The Obama administration justified this approach by citing a claim that several hundred thousand female students (one in five) were sexually assaulted in college annually. However, the deeply flawed surveys that made such assertions were contradicted by the government’s own statistics. Rather than subjecting the numbers to appropriate skeptical scrutiny, Obama officials moved forward with the zeal of true believers.
They also convinced themselves that to encourage more victims to report their assaults, campus procedures had to shield complainants from answering challenging questions. While such an approach might be understandable as a human impulse to spare the traumatized from further agonies, the sentiment had disastrous effects on the fairness of campus proceedings. Hearings and cross-examinations increasingly gave way to a “single-investigator model”—a person hired by the campus Title IX office who was then given the power to serve simultaneously as judge, jury, prosecutor, and police.
In effect, the Obama administration had decreed that countless innocent students must be sacrificed for a perceived greater good. Jared Polis, at the time a member of Congress, inadvertently summarized the underlying philosophy in a 2015 House hearing. “If there’s ten [students] that have been accused,” the future governor of Colorado observed, and “maybe one or two did it, it seems better to get rid of all ten people. We’re not talking about depriving them of life or liberty.” In a chilling moment, activists in the hearing room erupted in cheers.
In case any institutions dared challenge Catherine Lhamon, the head of the Office of Civil Rights during Obama’s second term, she vowed to pull federal funds from colleges that would not comply. Her threat, coupled with pressure from campus activists and one-sided media coverage, prompted schools to bias their Title IX procedures even more than the Obama administration demanded. Retired federal judge Nancy Gertner, who now teaches at Harvard Law School, observed that the system effectively created “a presumption in favor of the woman complainant,” lest a not-guilty finding trigger a federal investigation or a media exposé.
Hundreds of accused students, denied a meaningful chance to defend themselves, filed lawsuits. Courts traditionally have deferred to academic disciplinary decisions. A professor, after all, is more qualified than a federal judge to determine whether a student committed plagiarism or cheated on an exam. But as they increasingly encountered students victimized by what DeVos would later deride as “kangaroo courts,” scores of state and federal judges across the country did not defer to academic authority. One principle these judges shared was that, as U.S. District Judge F. Dennis Saylor observed in a 2016 opinion arising from a lawsuit filed by a Brandeis University student, “whether someone is a ‘victim’ is a conclusion to be reached at the end of a fair process, not an assumption to be made at the beginning,”
Another 2016 decision, by the Second Circuit U.S. Court of Appeals, grew out of drunken sex between two Columbia students at a party three years earlier. The accuser, worried that the incident might affect her social standing, developed second thoughts. Several months later, she filed a Title IX claim, saying that she could not have consented because she had been incapacitated by alcohol. Amid protests demanding crackdowns on campus rapists, Columbia changed its theory of the offense after the investigation ended; it found the male student guilty, on the novel theory that he had inappropriately pressured the woman for sex in the run-up to the party. The Second Circuit responded that a university “that adopts, even temporarily a policy of bias favoring one sex over the other in a disciplinary dispute, doing so in order to avoid liability or bad publicity, has practiced sex discrimination, notwithstanding that the motive for the discrimination did not come from ingrained or permanent bias against that particular sex.”
Worse, at Purdue University, an accused student was found guilty and stripped of his ROTC scholarship even though his accuser refused to appear before the disciplinary tribunal or even to submit a statement offering her version of events. (A campus official serving as a victim’s advocate instead wrote a memo on her behalf, claiming the female student had been too incapacitated to consent to sex.) And although the accused student said his roommate would verify his version of events, the university investigator did not bother to interview the roommate. All this moved Judge Amy Coney Barrett of the Seventh Circuit U.S. Court of Appeals to suggest, in a preliminary ruling against Purdue, that its process had been a “sham” hearing.
The most important federal-appeals-court decision centered on a case at the University of Michigan involving yet another paradigmatic hookup after which the accuser claimed she had been too drunk to have consented. After speaking to both students and other witnesses, a university investigator concluded that the accused student likely was not guilty. But a three-person panel reversed the finding without hearing from either student or giving the accused student an opportunity to submit questions for the panel to ask. He sued. During the oral argument, Judge Julia Smith Gibbons, of the Sixth Circuit Federal Court of Appeals, said she couldn’t “get past the university’s indifference, defiance, or whatever you want to call it, to our Circuit precedent and to the basic principles of due process.” The court ruled that “the university must give the accused student or his agent an opportunity to cross-examine the accuser and adverse witnesses in the presence of a neutral fact-finder.”
The DeVos regulations draw heavily from these rulings and 172 others against universities in accused-student lawsuits, since they documented the fundamental unfairness in how schools operated under Obama-era guidelines. Perhaps the regulations’ most important provision will require schools to allow both accuser and accused to present their versions of events in a hearing that includes cross-examination conducted by the student’s lawyer or advocate. Cross-examination is especially relevant in campus sexual-assault cases, which generally turn on the credibility of the two students. And, as the Supreme Court has acknowledged, cross-examination is “beyond any doubt the greatest legal engine ever invented for the discovery of truth.”
The regulations include provisions to ensure that both students have an equal chance throughout the process. Universities will need to give the accused student specific notice of the allegations, share all relevant evidence with each student, and reveal on their websites the previously secret training that Title IX adjudicators have received since 2015. That training—which during the Obama years focused on “trauma-informed” themes suggesting that virtually any behavior was compatible with an accused student’s guilt—now also must include instruction in due process and how to handle the case fairly.
The regulations also provide important protections for student victims. They require colleges to handle not merely sexual-assault allegations but also (unlike the Obama policies) claims of stalking, dating violence, and domestic violence. Schools must offer supportive measures to all complainants, including academic, medical, and residential accommodations. The rule allows accusers who wish to pursue college-sponsored mediation to do so, an option previously forbidden. Responding to the public comments on the draft regulations, the Education Department also modified the final version to ensure it would cover offenses committed off-campus at fraternities and sororities, among other university-related settings.
Some elite private colleges nonetheless have threatened to sue to block the regulations, arguing that the Department of Education lacks the authority to tell them how to handle Title IX complaints fairly. But there’s no reason to believe that private institutions handle these cases better than their public counterparts. Amherst College, for instance, upheld a guilty finding despite the accuser’s text messages from the night of the incident contradicting her campus testimony, including a search for a “good lie” to explain having seduced her roommate’s then boyfriend. The college’s hired investigator later testified that the text messages were irrelevant because the accuser had written them before convincing herself, many months later, that she had been sexually assaulted.
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DeVos has been widely savaged for trying to create a fairer system. This was predictable because the recent politics of this issue, like most matters that involve criminal or quasi-criminal allegations, have overwhelmingly favored alleged victims. Dozens of Democratic legislators (and even a few GOP members of Congress) passionately backed Obama’s accuser-biased approach. The other side was nearly silent in Congress, as only Republican Senators Lamar Alexander and James Lankford publicly (but quietly) called for fairer campus systems.
In her first several months in office in 2017, DeVos met with survivors of sexual assault, university administrators, and wrongly accused students. (The Obama Education Department had repeatedly spurned meeting requests from groups representing accused students.) Hearing from students on both sides spurred DeVos to action. In September 2017, she rescinded the Obama-era guidance documents, denounced what she called “rule by letter,” and promised to issue new regulations after giving the public a chance to comment on them.
Various Senate Democrats denounced DeVos’s work as “appalling,” “disgraceful,” “an insult,” “outrageous,” “shameful,” and “dangerous.” Several of their House colleagues deemed her “terrible,” “despicable,” “insulting,” and “perverse.” In a conference call criticizing DeVos’s decision, Joe Biden expressed a reflexive belief in the allegations of campus accusers. Then, he urged activists to “shame” defenders of DeVos’s efforts just as they condemned “those Nazis marching” in Charlottesville.
DeVos persevered. In November 2018, the Department of Education opened draft regulations for comment. Accusers’-rights organizations coordinated an effort to push back the final release by flooding the comment process, and, later, feminist groups led by the National Women’s Law Center used meetings with the Office of Management and Budget to add several more months of delay.
These delays may have backfired, because by the time the regulations were finally released, the political environment had changed. A former Biden staffer named Tara Reade had accused Biden, by this point the Democrats’ presumptive nominee, of having sexually assaulted her in 1993. Reade’s story had many weaknesses, but in defending Biden, prominent Democrats belatedly recognized (or briefly pretended to recognize) the importance of due process in evaluating sexual-assault claims. House Speaker Nancy Pelosi reminded a press gaggle that “there’s also due process” for parties accused of sexual assault—only to, six days later, attack DeVos’s “callous, cruel, and dangerous” proposal to safeguard the due-process rights of accused students.
Biden’s denunciation of the new regulations coupled with his call to reimpose Obama-era policies, seemed even more out of touch, an effort to deny to wrongly accused college students the same presumption of innocence and due process that he was invoking for himself.
In a video address, DeVos argued that “the way to a better Title IX justice process is not to undermine rights, but to uphold them … The way to put an end to the crisis of confidence on too many campuses is to rediscover the fundamentals of our Founding on which our Framers staked their futures for the sake of ours.” In the end, the fairer system the regulations create will serve the interests of all parties. Accusers will be heard and respected. Accused students will receive a meaningful chance to defend themselves. And universities may be forced to acknowledge that their goal must be not to privilege either side but to determine the truth.
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