Comply, Evade, Violate: Three Responses to the New Title IX

We’re now more than one month into the implementation of the new Title IX regulations—improvements which the nation’s higher-education establishment uniformly opposed. The amended regulations require two major changes: they narrow the definition of sexual harassment (but not sexual assault) to the definition offered by the Supreme Court in Davis. And they confine a university’s obligatory jurisdiction under Title IX to incidents that occurred on-campus or in off-campus areas in some way affiliated with the university (e.g., a fraternity or an off-campus educational activity). For any adjudication under Title IX, universities must provide the accused student with access to the evidence gathered in the investigation and a live hearing with cross-examination before a decisionmaker who isn’t trained in a biased fashion.

One primary goal of the regulations was to avoid geographical arbitrariness. In six circuits spanning 29 states, Appeals Courts have issued favorable opinions to accused students—which at least have provided some check on the one-sided nature of a typical Title IX adjudication. But, at least before the regulations, students in other circuits were out of luck. That especially applied to the Tenth Circuit, which has ruled that a university “railroading” an accused student isn’t inconsistent with Title IX.

Alas, uniformity has proved elusive, as colleges have divided into three groups of institutions: those attempting to implement the regulations in good faith; those employing a “two-track solution” of unfair procedures for off-campus allegations; and those that are undermining the spirit and in some cases the letter of the regulations.

In the first group, the University of North Carolina stands as a typical example. The university’s new procedures provide a clear statement that the accused student is presumed innocent, and gives the accused student both meaningful notice and sufficient time to prepare for his hearing. The procedures also place no unreasonable restrictions on the accused student’s right to cross-examination. Cornell, another example of the first group of schools, has fully implemented the Title IX regulations for on-campus allegations and has decided to apply the procedures mandated by the regulations to all off-campus incidents that might lead to suspension or expulsion; the University of Michigan has taken a similar approach.

A second group of schools have taken advantage of the fact that the new regulations don’t prohibit schools from adjudicating off-campus conduct by setting up a two-track systemthat will allow them to adjudicate at least some sexual misconduct claims in a one-sided manner. Colleges have made this choice, moreover, even though: (1) the federal government has made clear they have no legal obligation to adjudicate many off-campus cases; and (2) it’s more expensive and complicated to have a two-track system, which requires training investigators and adjudicators in two systems rather than one. As Samantha Harris and Michael Thad Allen have argued, this record confirms universities’ “perceived need to redefine sexual agency, sexual mores, and consent, which will apply only on campus and nowhere else in American life”—regardless of whether Title IX requires them to handle the matter.

For a typical two-track system, consider the choices made by Princeton. On-campus allegations will be addressed through the procedures mandated by the new regulations. But the new Princeton procedures ensure that students accused of sexual misconduct off campus won’t have a right to live cross-examination; instead, they can submit written questions to a hearing panel, which has sole discretion on whether the questions will be asked. The new federal regulations also allow sexual misconduct cases to be handled informally, as long as accuser and accused both agree. But Princeton’s new policy adds a twist: it envisions various punitive measures even if the action is handled informally. After an informal resolution, the accused student can be forced to change dorms and face various restrictions from campus events or groups.

The two-track system applies to two separate sorts of offenses: (1) sexual harassment that doesn’t adversely affect a student’s educational access and (2) many off-campus allegations of sexual assault. The former issue sounds problematic in theory but likely will have little real-world impact: the few schools that produce reports tracking Title IX adjudications indicate that few, if any, adjudications of minor sexual harassment cases have occurred in recent years. The latter issue, by contrast, is potentially very serious—and also a lawsuit waiting to happen in any case where an accused student is found guilty.

The third, and most troubling, group of institutional responses to the regulations come from universities whose policies at the least push the envelope on complying with the regulations by simply violating them.

The regulations, for instance, require schools to presume the accused student innocent. (Remarkably few had procedures that did so before 2020.) But Harvard’s policy includes the following: both the investigator and the hearing panel must begin the process by agreeing “that whether conduct is unwelcome is subjective, that is, based on whether the person subject to the conduct viewed it as unwelcome.” The accused student then has to overcome this presumption, which risks a process in which he must prove himself, rather than be presumed, innocent.

The Education Department, relying on various court decisions, required cross-examination to ensure that the decisionmakers wouldn’t make a credibility determination before the accuser’s version of events had been challenged. But the University of St. Thomas (which survived a lawsuit from an accused student despite the district court commenting on its unfair appeals process and an appeals court acknowledging its biased training) has made clear it wants credibility determinations made before the accused student has a meaningful chance to defend himself. And so, the school requires the investigator to “make determinations regarding the credibility, or perceived truthfulness, of all parties, including witnesses” before a hearing takes place. The underline is in the original, to emphasize how important UST considers a pre-hearing determination to be.

Arizona State University has used its two-track process to introduce a type of double jeopardy into the Title IX process. “If the facts or occurrences forming the basis of a formal complaint of Title IX sexual harassment would also constitute a violation of other university policies such as . . . the policy prohibiting other kinds of harassment, discrimination, and retaliation [ASU’s two-track policy], . . . those potential policy violations will be addressed outside of this grievance process through the applicable procedures. When appropriate, this grievance process may proceed concurrently with any other university process addressing other aspects of the facts or occurrences giving rise to a formal complaint of Title IX sexual harassment.” It’s almost impossible to imagine a way in which this type of adjudication process—a student adjudicated through two different adjudication procedures, one due process-friendly, one not—could be administered fairly.

Then there’s the University of California system. In an almost desperate attempt to make things harder for the accused student, the systemwide Title IX director released an August 14 letter mandating that “the parties prepar[e] their own questions, including follow-up questions, to be asked by the advisor or Reader. An advisor cannot ask questions they themselves develop without their party.” There would be, of course, no way to enforce this policy regarding initial questions. But the provision would make lawyer-developed follow-up questions impossible. The letter claimed that this policy was necessary “to ensure that live hearings proceed respectfully”—but there’s no reason to believe that student-developed questions would be more “respectful” than lawyer-developed questions. An experienced lawyer, however, would be far more likely to recognize weaknesses in an accuser’s response to initial questions, and be able to develop questions that might raise credibility concerns about the complaint. By placing restrictions on the ability of a student’s advisor to pose questions, the UC letter would seem to violate the new regulations.

Rice University’s Title IX office assures students that “there is little likelihood that you will suffer any adverse action as a consequence of a malicious, false complaint brought against you.” No one who has observed the world of Title IX adjudication since 2011 would believe such a claim. Those who have convinced themselves that false claims pose no problem still populate Title IX offices is a reminder that the regulations will need rigorous enforcement from the Education Department.

A core debate since the Obama administration’s 2011 “Dear Colleague” letter has been whether universities ought to sweep sexual assault allegations under the rug—or whether, amidst guilt-presuming campus cultures, they too often adjudicate cases that involve allegations that no reasonable person would even consider sexual assault. The response to the regulations pretty much settles the dispute. No university that wanted to sweep allegations under the rug would devise separate procedures that seem to make it easier to find accused students guilty. Instead, most schools’ record over the past few months suggests an almost desperate desire to police the sex lives of their students.

Image: Gage Skidmore, Public Domain