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‘Survivors’ harmed by existing process, which no one trusts

The ACLU. The NAACP. Ruth Bader Ginsburg. Brown v. Board of Education.

Political progressives’ favorite organizations, legal precedents and Supreme Court justice all made favorable appearances in Education Secretary Betsy Devos’s* announcement of the department’s long-awaited regulation on reporting and adjudicating sexual misconduct claims in K-12, college and vocational education settings.

The final rule, which is not official until its publishing in the Federal Register, does not substantively differ from the proposed regulations the Department of Education offered for public comment 18 months ago.

Notably, it still requires colleges to subject accused faculty and students to the same evidence standard, eliminating a common discrepancy in college adjudication settings that typically favors faculty. Colleges also must ditch the “single investigator” model of adjudication, where one official makes all decisions, and offer live hearings with cross-examination led by advocates, including lawyers, for each student.

In an 18-minute video address laying out the new rules and their rationales, DeVos emphasized that they are based on the most fundamental principles of America’s founding, dating to the Magna Carta and formalized in the Bill of Rights.

(The coronavirus pandemic may have changed DeVos’s plan for her speech. She announced the rescission of the Obama administration’s Title IX guidance in a speech at George Mason University in September 2017.)

But the secretary took pains to state that the rules would help accusers, whom she consistently termed “survivors,” as much as accused students. “For the first time ever” the department is codifying sexual harassment, she said, noting that her predecessor tackled the subject through guidance-level “Dear Colleague” letters.

“We owe students more than letters,” DeVos said, in one of many swipes at the Obama administration: “We owe students more than good intentions. We owe them accountability through the law,” with new rules that are compliant with the Clery Act, Violence Against Women Act and “Supreme Court caselaw.”

‘No student accused should be punished before evidence proves responsibility’

The new rules fulfill the purpose of Title IX, which itself was just as momentous as Brown, the Individuals with Disabilities Education Act and Every Student Succeeds Act, DeVos began her address.

“There is no place for sexual misconduct anywhere. Such acts are disgusting and unacceptable” in every kind of school, she said, while emphasizing fairness for all parties: “No incident should ever be swept under the rug, and no student or teacher accused should be punished before evidence proves responsibility.”

In another veiled swipe at her predecessor, who treated guidance letters as if they had the force of law, DeVos praised the 124,000 comments the department received on its proposal. This “unprecedented level of engagement” was made possible by extending the comment period: “This is how our government should work.”

From survivors to the “wrongly accused” to administrators, in meetings with DeVos everyone agreed the Obama system “did a disservice to everyone involved,” she said: “We can continue to combat sexual misconduct without abandoning our core values of fairness, presumption of innocence and due process.”

The regulation “empowers survivors like never before” by giving them the choice how they want to proceed, if at all, while receiving “free, personalized services” from their school to help them stay on track educationally.

MORE: Title IX regulation would mandate cross-examination, same evidence standard

The current process often forces them into “suffering trauma all over again” by going through the process the school prefers, when some students would choose options that the school can provide “almost immediately.” DeVos said accusers would be granted “academic course adjustments, counseling, no-contact orders, dorm reassignments, leaves of absence and class schedule changes” in lieu of compelled participation in a proceeding.

The final rule fills in the gaps left by the Obama administration while focusing obligations on schools only for activities and settings they can “control,” she said. In contrast to the “footnote” they occupied in the previous guidance, dating violence and stalking are now explicitly covered by law.

The department is only compelling colleges to address sexual misconduct in recognized off-campus fraternities and sororities, as opposed to the many social organizations that have lost or never sought official recognition.

K-12 students are getting more protections as well, DeVos said, pointing to a troubling pattern of misconduct in Chicago public schools where “too many innocent young students suffered because adults didn’t do their job.” Now schools are responsible for both student-on-student sexual misconduct and “teacher-on-student abuse.”

Misconduct reporting “by any person to any school employee” will trigger “actual knowledge” for K-12 settings, with a obligation to investigate “every formal complaint and apply basic due process protections,” DeVos said. Fairness, equal treatment and presumption of innocence are all “commonsense measures.”

Survivors ‘need justice, and justice without fairness is no justice at all’

Progressives should be troubled by the results of the system developed by the Obama administration, DeVos said, echoing longstanding criticisms from black and feminist law professors.

She cited criticism from a county NAACP official who said the system disproportionately hurts African-American men, while quoting the ACLU, which “insisted” that equal rights and due process have “shared interests.”

No student, including those accused, should be “unjustifiably deprived” of access to education, DeVos said, noting that Justice Ginsburg has publicly said that “everyone deserves a fair hearing” even in campus adjudications. Students shouldn’t have to sue for their “centuries-old rights to due process” in the Constitution.

Just must come from a process “widely believed to deliver fair and reliable results,” and on that measure the Obama administration failed by creating “lack of faith in the system.” It wasn’t fair to anyone, “most of all survivors,” whose victories in many campus adjudications were short-lived when courts overturned the results on various grounds, she said.

“Those who insist that the previous administration’s [Dear Colleague] letter worked well can’t ignore 171 lawsuits which found students’ rights were not respected in campus proceedings,” DeVos said.

She cited two federal appeals court rulings that rebuked colleges. A 7th Circuit panel of “all women” judges found Purdue University deprived fundamental fairness to an ROTC student who was suspended and banned from offering evidence in response to his ex-girlfriend’s claims, without even requiring her to testify.

The 6th Circuit also ruled that when universities have to choose between “competing narratives,” they must allow students to cross-examine each other through their “agents,” DeVos said, apparently referring to a ruling against the University of Michigan notable for its praise of the film “My Cousin Vinny.”

Accusers are also harmed when universities make “process error after process error,” DeVos said, pointing to a six-year-old University of Kentucky case that has gone through four hearings and four appeals.

Those who suggest that sexual misconduct acts “are so personally devastating that they supersede any kind of right,” and that “any complaint must be believed without even considering the facts,” must consider that “survivors need more than belief,” DeVos said: “They need justice, and justice without fairness is no justice at all.”

The department is not reforming but rather replacing the process by returning to the “fundamentals of our founding,” particularly James Madison’s contribution: “no person shall be deprived of life, liberty or property without due process of law.” DeVos cited a California appeals court ruling that found it’s impossible to deprive due process to one party without harming the other.

That’s why the new rule requires a “written notice of allegation,” right to an advocate “who may be” an attorney, and right to challenge and submit evidence, she said. An “unbiased decisionmaker” must decide based on the facts as revealed in a live hearing with cross-examination, with restrictions to keep the parties from coming “face-to-face” with each other and exclude “irrelevant or privileged” questioning.”

“A fair finding must never assume one party is credible and the other not,” DeVos concluded, and it must explain how the decisionmaker reached conclusions. Accusers must also have appeal rights and they can’t face retaliation even if they “choose not to” participate in a grievance process.

*Disclosure

MORE: Universities must copy ‘My Cousin Vinny’ in Title IX proceedings

IMAGE: U.S. Department of Education/YouTube

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