As the U.S. Department of Education (DOE) notes in a footnote to its proposed new regulations for how schools handle Title IX complaints of sexual discrimination, including harassment or misconduct, more than 90 colleges have lost due-process challenges brought by students challenging school disciplinary actions. That means higher educators lose about half of the time when a court reviews how they handle Title IX complaints.
Not only have some basic positions staked out by what DOE artfully but ambiguously describes as “guidance” — a very low evidentiary standard, procedures giving short shrift to the presumption of innocence and other rights of those accused, and much more — drawn substantial criticism from legal scholars and civil libertarians, but DOE’s new proposal says it also found schools uncertain whether the agency’s guidance was legally binding (in its communications, DOE finessed that crucial question, but did manage to speak menacingly of cutting off federal funds to schools which failed to comply with Title IX requirements, whatever those might be).
I have previously discussed several college and university Title IX actions or failures to act, which courts rebuffed. These included a federal appeals court’s ruling that the University of Michigan violated due-process rights when it refused to allow an accused to cross-examine the accuser or other witnesses in any way in a case which turned on witness credibility,
Or take the case of Keith Humphrey, an NFL receiver who played football at Michigan State. While in college, another student complained he sexually assaulted her in her dorm room. Humphrey cooperated with local police, who declined to prosecute. Although he was not permitted to pose any question to the accused, who also refused to answer questions from the college’s investigator, the college’s Title IX panel cleared him.
But, unlike in criminal cases, where the U.S. Constitution prevents double jeopardy, under Title IX, an accuser is permitted to appeal a decision clearing the accused, which Humphrey’s accuser did. But because this time, the school sent an email notice to an old address the accused no longer used, he didn’t receive notice of the appeal hearing, much less have an opportunity to participate in it. This time, the school’s disciplinary panel changed its mind, and held Humphrey responsible.
So, because the college reversed itself at a hearing the accused was not even aware of, he was expelled from Michigan State’s graduate school (he was attending during the NFL off-season), and the Houston Texans decided it couldn’t keep him on the team with that on his record. Not surprisingly, no other team has offered him a slot on their roster, either.
It’s still too early to predict the outcome of DOE’s ongoing rulemaking proceeding, but it’s not difficult to see how higher educators — seeing their continued federal funding potentially threatened if they didn’t go along — had for years yielded to adopting standards that official enthusiasts pressed on them, whether or not that “guidance” clashed with basic constitutional rights. The previous, now-rescinded guidance was adopted without opportunity for public comment; this time let’s hope that the previously disregarded values get full consideration.