Department of Education’s New Title IX Guidance Draws Lawsuit

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Last September 7, in a speech at George Mason University in northern Virginia, Secretary Betsy DeVos announced the Department of Education (DOE) would soon abandon its current guidance, issued during the Obama administration, on how colleges should handle complaints of sexual discrimination, harassment or misconduct.

Fifteen days later, DOE followed through by issuing what it called interim guidance, which replaces a controversial “Dear Colleague” letter sent to colleges by DOE’s Office of Civil Rights (OCR) in April 2011 and further “questions and answers” guidance on sexual assault investigations promulgated three years later.

Both those now-rescinded documents were issued without formal notice-and-comment rulemaking; OCR says its Title IX efforts will not rely on either of those documents, but adds that its revised questions and answers issued on September 22 will not add to universities’ regulatory burden and will be subject to notice-and-comment rulemaking.

Significant changes in the guidance revised some of the most controversial elements in the Obama administration’s enforcement policies. The revised guidelines drop the requirement in the OCR’s 2011 guidance that college disciplinary hearings on sexual assault cases use the evidentiary standard of a preponderance of the evidence, meaning guilt seems more likely than innocence, no matter by how small a margin; instead universities will be allowed to either choose to continue that standard or instead change to the more demanding standard of clear and convincing” evidence of guilt, which a majority of colleges used before DOE disallowed it.

Another change in the interim guidance would let colleges use less formal methods, like mediation, for informally resolving appropriate cases. Also, backing away from OCR’s previous position that Title IX investigations typically should be completed within 60 days after a complaint is filed, the new interim guidance says there is “no fixed time frame” for finishing a Title IX investigation. The interim guidelines also include some provisions addressing criticism of the earlier Title IX guidance as deficient in protecting the due process rights of accused, such as providing access to the identity of accusers and the alleged misconduct.

Less than a month after DOE issued its new interim guidance, the agency and Secretary DeVos were sued over it in the federal court in Boston by three pseudonymous female students, alleged victims of sex-based discrimination covered by Title IX, and by Equal Means Equal, a Los Angeles-based anti-gender bias group.

Seeking to have the court temporarily and permanently enjoin the new guidance, the lawsuit attacks it as unlawful and arbitrary, and claims it violates Title IX in at least nine ways, including by setting more demanding rules for bringing complaints against sex-based discrimination than for other types of discrimination. The case, which also seeks to represent all women with similar complaints, further claims DOE’s interim guidance also contravenes the First Amendment, the Administrative Procedures Act and part of the Massachusetts state constitution. Equal Means Equal also says it plans to file similar lawsuits in other states.

Trial Lawyers Hit Title IX Hearings as Lacking Fairness, Due Process

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According to a new report by the American College of Trial Lawyers (ACTL), university students accused in campus hearings of sexual misconduct are “deprived of their fundamental fairness,” and procedures set by colleges and universities in response to a legal mandate enforced by the federal Department of Education’s Office of Civil Rights (OCR) are in need of serious improvement.

An invitation-only organization of distinguished trial advocates, ACTL assembled a five-member task force of prominent litigators to assess how well or poorly universities and colleges are responding to allegations of sexual violence. A mandate in a 1972 federal education gender-based bias law, known as Title IX, requires higher-education institutions to investigate and, when warranted, hold hearings in response to complaints of sexual harassment or violence by students or employees.

Especially during the Obama administration, OCR has issued regulations and interpretive guideline expanding how it believes schools should handle Title IX investigations. Institutions judged to be out of compliance with the mandate can be fined by OCR and risk having all their federal funds cut off, including federal-guaranteed scholarships. The ACTL report says the government’s significant enforcement powers can put academic administrators in a bind that amounts to a conflict of interest, in which they run the risk of serious financial penalties for providing better protection of student rights.

The ACTL report also notes some schools have adopted procedures for investigations and hearings that have drawn protest from faculty at affiliated law schools. At Harvard, more than two dozen law school teachers protested the university’s procedures for Title IX cases as lacking the “most basic elements of fairness and due process” and being “overwhelmingly stacked against the accused.” 

Styled as a task force’s “white paper” on campus sexual assault investigations, the ACTL report notes state and federal courts are receiving growing numbers of lawsuits filed by students accused or investigated in Title IX proceedings, and some decisions question whether colleges and universities are providing adequate protection of individual constitutional rights.  The white paper’s authors maintain OCR’s regulations for colleges have acted to impose on U.S. higher education an “investigative and adjudicative system that does not ensure basic fairness for accused students.”

The white paper argues, to ensure basic fairness, students facing Title IX investigations or hearings should receive these seven elements: a process careful to maintain an appearance of impartiality, detailed information on charges and the right to counsel, the right to be accompanied and advised by counsel at all stages, timely access to evidence, some form of cross-examination of witnesses, written findings of fact of an investigation or hearing is over detailed enough to allow appellate review, and a “clear and convincing” standard of proof.

The last item, the standard of proof, is a much-criticized part of the OCR’s regulations. OCR currently requires colleges and universities to use the far lower “preponderance of the evidence” standard, essentially meaning all that is needed for the accused student to be held responsible is for the complainant to have any edge in credibility, no matter how slight — significantly short of what would be needed for a finding of “clear and convincing” evidence, and even further below the standard for criminal cases, a presumption of innocence and evidence beyond a reasonable doubt.