Due process advocates cheer overlooked changes to Title IX proceedings in DeVos rules

Gag orders banned, no more ‘Miranda dilemma’

The new Title IX regulation released by Education Secretary Betsy DeVos* Wednesday is getting high praise from due process advocates, mirroring their responses to the proposed rules 18 months ago.

The Foundation for Individual Rights in Education pointed out they not only offer an “express presumption of innocence,” access to evidence and the option of choosing a lawyer to conduct cross-examination in sexual misconduct proceedings, but also “important protections for student free speech rights.”

In codifying sexual harassment for the first time, the rules adopt the Supreme Court’s three-part test (“severe, pervasive and objectively offensive”) from Davis v. Monroe County Board of Education, ensuring that simply offensive or fleeting expression is not punished, FIRE said.

The civil liberties group challenged the Obama administration’s Title IX “guidance,” nonbinding on its face but de facto enforced against colleges, in a 2016 lawsuit.

“Institutions will finally have to guarantee due process for students caught up in campus kangaroo courts,” FIRE Executive Director Robert Shibley wrote in a Wall Street Journal op-ed.

He praised the three-part sexual harassment definition, saying the “current patchwork of rules … invite censorship of speech or behavior that is both constitutionally protected and not harassment”:

In Title IX’s name, colleges over the years have banned what they characterize as “derogatory cartoons,” “innuendo” and “sexually suggestive statues.” Students and professors’ political, academic and artistic speech deserves protection.

The “vested interests” of college administrators and rape-culture activists, who have denounced the rules since they were proposed, “can’t distract from a broader reality: From liberal Harvard law professors to social conservatives, many agree that the current Title IX system on campus is profoundly broken,” Shibley wrote.

Lawyer Andrew Miltenberg, who has represented more than 200 students in due process lawsuits against colleges, praised the “one required protocol for Title IX investigations and hearings” codified in the Title IX regulation.

He has “seen, up close, the manner in which accused male students are inherently and routinely treated like criminals on college campuses” without even “the basic elements of due process,” he wrote in an email. The new regulation will ensure “students are innocent until proven guilty — and not the other way around.”

Echoing Miltenberg, Title IX attorney Kimberly Lau said the regulation “may not be perfect” but responds to the “dire need for clarifying” Title IX, finally addressing sexual harassment, assault and due process in binding documents rather than “guidance.”

“Due process should not be viewed as bolstering one side over the other but, rather, as a meaningful way to hold schools and the parties accountable,” she wrote in an email, urging schools to stop fighting implementation of the regulation by citing the novel coronavirus: “[T]he reality is that Title IX cases are going to arise with or without the presence of COVID-19.”

While arguing that the changes were not as momentous as believed, criminal defense attorney Scott Greenfield tweeted that at least accused students no longer must face “the Miranda dilemma” resulting from dual criminal and Title IX proceedings: The regulation “precludes drawing any inference from [the] accused’s silence when facing criminal prosecution.”

Lawyer Naomi Shatz, who testified against a Massachusetts bill intended to preempt DeVos’s feared revisions, highlighted other tidbits in a long Twitter thread. Among them: Accused students must be offered “supportive measures” and a chance to “immediately” challenge “emergency removals,” Title IX personnel can’t be biased against accused students “generally” (regardless of sex), and a ban on gag orders.

MORE: DeVos cites liberal icons to justify Title IX regulatory changes

16) Schools cannot restrict the parties from discussing the allegations — this is a significant change from the way many schools have gag orders on participants , which can interfere with students' ability to gather evidence.

— Naomi R. Shatz (@NaomiShatz) May 6, 2020

Law professor John Banzhaf of George Washington University noted that colleges may have difficulty continuing to judge students by the low “preponderance” evidence standard, because the regulation mandates that accused faculty be subject to the same standard.

Faculty generally enjoy a higher evidentiary burden known as “clear and convincing,” and both are allowed under the regulation. They are likely to object than preponderance – casually known as “more likely than not” – “is insufficient to protect academic freedom and tenure,” Banzhaf wrote in an email, quoting a comment to the department that’s mentioned in the final regulation.

Banzhaf also plugged an idea he has championed, for colleges to farm out sexual misconduct proceedings to a “consortium,” thus removing the inherent conflict of interest from individual administrators and providing sufficient resources. The regulation explicitly encourages this “regional center” model, with the department offering to provide “technical assistance” on creating such centers, the professor noted.

Lawyer Samantha Harris, who recently entered private practice while remaining a FIRE fellow, praised the regulation in the New York Daily News for ordering colleges to give both parties “all of the evidence related to the accusation,” meaning they are banned from hiding evidence such as ulterior motives for making an accusation.

She emphasized that colleges must post their Title IX training materials on their websites – ending the legal maneuvering that accused students often must make to find out how adjudicators were trained – and that those materials must not “rely on sex stereotypes and interfere with impartial decision-making.”

Lawyer Justin Dillon, who has represented accused students at more than 100 schools, told The New York Times that the Title IX regulatory process “resembles almost nothing that the administration has done — it was honest, it was thorough.”

Crucially for the department, the chairman of the U.S. Senate committee that oversees education praised the regulation. “Under the previous administration, a single official at the U.S. Department of Education was issuing edicts, without the proper public input,” Lamar Alexander of Tennessee told the Times.