Independent Women’s Forum Sends Comments to Department of Education on Proposed Changes to Title IX Enforcement

Instead of focusing on fairness and justice, the the previous guidance jeopardized free speech and due process rights for college students across America.

The guidance on offer in the 2011 Dear Colleague letter was not working for victims, accused students, or universities. As evidence of that failure, we need look no further than the hundreds of federal court cases universities have had to settle with students, “convicted” through the university process, and later vindicated in a real court of law. These guidelines were so vague, the roles of accused and accuser could be determined by which student involved in an incident hit the school’s Title IX office first the following morning.

First, I want to commend the Department for reverting to the Supreme Court’s definition, articulated in Davis v. Monroe County Board of Education, of harassment as severe, pervasive, and objectively offensive. The previous definition advanced by the 2011 Dear Colleague letter, which was reliant on subjective perception of offense, was so broad that it swept in protected speech as “harassment.” 

In response to the Department’s invitation to ban protected speech under the guise of “harassment,” universities responded with speech codes that often failed to hold up in court, leading to absurd outcomes. For example, a tenured female professor was fired from LSU, not for anything the average American would recognize as sexual harassment, but for using blunt and vulgar language in her lectures that some students considered offensive. 

Second, the Department appropriately confined the jurisdiction of Title IX investigations to campuses themselves, along with official school activities. Though they may not always act like it, college students are legal adults, and universities cannot and should not be held responsible for policing every aspect of their students’ lives. 

Third, the Department advanced fairness by changing several aspects of its guidance on how universities ought to conduct sexual assault investigations. By nature, universities are ill-equipped to handle criminal assault charges compared with the police. If universities are going to deal with serious charges like sexual assault, however, it is critical that the sanctions they wield, which often can ruin a life forever, are applied only after a fair process to determine facts and guilt.

Cross examination is generally considered “beyond any doubt the greatest legal engine ever invented for the discovery of truth.” Contra sometimes-hysterical claims in the press, the Department’s changes do not force a victim to be cross-examined by her alleged assaulter; the two do not even have to be in the same room. Instead, counsel or another representative of the accused will have the opportunity to ask questions and probe inconsistencies in the accusation. While everyone is sympathetic to the discomfort of an alleged victim, these are serious charges, and as evidenced by the Justice Kavanaugh media circus debacle, of which 70 percent of Americans disapproved, we also cannot punish students on the basis of mere unexamined accusation. 

And it is especially inappropriate to punish students who must argue their innocence in front of the same single investigator who takes down the stories of each side, making a mockery of the basic due process guarantee of a neutral decision maker. Prior to the reversal of the Obama administration Dear Colleague letter, many universities were adopting this singularly unfair model of investigation. 

Similarly, encouraging schools to adopt the “clear and convincing” standard of guilt rather than “preponderance of the evidence,” as the proposed rule does, will further the cause of truth in these investigations. Serious charges with the potential to destroy lives forever ought not to be determined on the basis of a coin flip.

If I could recommend one addition to the proposed changes, it would be to bar appeals of any “not guilty” finding, in accordance with the double-jeopardy principle enshrined in the Constitution and applied in criminal proceedings. Nevertheless, the new rule as written represents a great step forward.

Women have nothing to fear from the proposed rule changes. A fair process does not disadvantage victims of sexual assault. Women have a direct interest in ensuring that these incredibly serious allegations are handled in a way that respects due process and the rights of the accused, as well as seeks justice for victims.