What DeVos Can't Change

Education secretary’s speech on Title IX implied she could end many policies suggested by Obama administration. But many policies on campus sexual assault investigations are enshrined in law.

September 11, 2017
 

Betsy DeVos last week blasted guidance from the Obama administration on investigation of campus sexual assault for creating a failed system. What she didn't note was that many of the provisions covered in the 2011 guidelines -- which she has vowed to rescind and replace with new regulation -- have since been enshrined in law. While DeVos has the power to repeal current guidelines, that won't change many of the responsibilities for institutions already in place.

The reauthorization of the Violence Against Women Act in 2013 prescribed new standards for campus disciplinary proceedings. And a number of court decisions involving Title IX of the Education Amendments of 1972 lawsuits have backed up the finding that institutions have an obligation to investigate and adjudicate campus assaults.

The impending debate is likely to focus as a result on questions involving the standard of evidence that should be used in reaching decisions and the ability of students to challenge the other party in the course of proceedings.

“The Title IX regulations and court precedent make clear that schools have a responsibility to respond promptly and equitably to reports of sex discrimination, including sexual harassment, including sexual assault,” said Alexandra Brodsky, a lawyer at the National Women’s Law Center and a co-founder of Know Your IX. “Schools will still need to provide accommodation necessary to help survivors stay in school and keep learning. They will still have to take steps to protect the larger campus community. They will still have to have a fair disciplinary process to investigate reports.”

All of those things are true regardless of what action DeVos takes on federal guidelines, she said.

And the 2013 VAWA states specific responsibilities of campuses to conduct fair hearings with transparent outcomes in cases of alleged domestic or sexual assault.

The VAWA, for example, states explicitly that a victim and an accused student are entitled to the same opportunity for an adviser of their choice in campus disciplinary proceedings. While the Dear Colleague letter does not require that colleges permit lawyers in any stage of the hearings, it states that both parties must have an equal opportunity for their lawyers to participate.

DeVos’s speech last Thursday, in which she described current federal policy as a “failed system,” suggested otherwise.

She also claimed many adjudicating claims in campus offices don’t have any training in Title IX policy -- which would be a violation of VAWA requirements and of a longstanding position by the department.

The VAWA also gave the force of law to some due process protections that already existed in the Dear Colleague letter. It required that accusers and the accused must be notified in writing at the same time of proceeding outcomes and options for appeal. The Dear Colleague letter had recommended that the parties be informed of proceeding outcomes simultaneously.

The law also directed that campus policies must protect victims’ confidentiality, and that new students and employees should be offered prevention and awareness programs on sexual assault and domestic violence.

Jim Newberry, a lawyer who heads the higher education practice at Steptoe & Johnson, said amendments to the VAWA in 2013 and subsequent regulation make it clear that campuses are required to investigate and adjudicate sexual misconduct violations.

He said that’s a problem for many administrators who support strong protections for campus safety and for victims of assault but who feel overwhelmed by the responsibilities of adjudicating misconduct proceedings.

“The core problem here is that institutions of higher education are in the education business. They’re not in the court business,” Newberry said. “These are court-like proceedings they just can’t effectively handle.”

An idea like the proposal for regional Title IX centers, which DeVos mentioned in her speech last week -- or some other solution that would ensure experienced investigators and hearing officers handle proceedings -- would be attractive, especially to smaller institutions. But the regional centers proposal would likely be incompatible with requirements of campuses under VAWA. (Some survivor advocates are also skeptical of the proposal.)

The big questions involving campus proceedings likely to be addressed in the department’s crafting of a new regulation are the proper standard of evidence in findings of sexual misconduct and rights of parties to direct cross-examination.

The 2013 VAWA reauthorization didn’t prescribe a standard of evidence to be used in campus-based proceedings, although it stated that institutional policy must include a standard of evidence used. The 2011 Dear Colleague letter specified that campuses should use the “preponderance of evidence” standard -- which means a finding that there is a greater than 50 percent chance that misconduct occurred.

While the guidelines did not have the force of law, they have functioned as the standard by which the department evaluates whether a campus is in compliance with Title IX. Multiple institutions -- including, notably, elite private universities -- overhauled their own campus policies in response.

Some advocates for accused students have called for higher standards of evidence, but many vocal critics of current federal guidelines say the standard used should be more flexible.

Joe Cohn, legislative and policy director at the Foundation for Individual Rights in Education, said the preponderance of evidence standard would be feasible if additional due process protections were included, such as the right to a lawyer who can serve as a full participant in proceedings. Without those measures, he said, the standard of evidence should be set by individual campus policy.

“We are hoping in this process the new rules and regulations clarify when it would be appropriate and when it would not be appropriate to use it,” he said. “We have to iron out how the choice of what standard to use should be part of the bigger picture of how the system works.”

Campus policies have sought to balance the ability of parties to question one another’s accounts in proceedings without retraumatizing victims -- for example, by submitting questions through a hearing board. But FIRE argues many policies do not go far enough in guaranteeing that right. Cohn said allowing students’ attorneys to serve as full participants would go a long way toward addressing concerns about cross-examination.

“I think the primary and right solution is the right to counsel that can participate in the process, as opposed to just sit there like a comfortable animal,” he said.

But introducing attorneys into campus proceedings would come with additional questions. Scott Schneider, a lawyer who frequently advises colleges and universities on responses to issues of sexual assault, said that could lead to scenarios where students of means are able to hire attorneys but lower-income students are less well represented.

“Is it possible to assign attorneys to students? It’s a pretty remarkable position to take,” he said.

The 2011 Dear Colleague letter discouraged direct cross-examination of students in the interest of protecting victims, but Schneider said some rulings at the district-court level have expressed concern about students’ inability to do so. It’s hard to have a truly fair process, he said, that is not adversarial and somewhat traumatizing.

“My only hope is that whatever is issued is based on talking to practitioners in this field, experts in this field, and looking at empirical evidence and not this anecdote-driven stuff that the secretary gave us,” Schneider said of the remarks from DeVos last week. “That’s just not a way to formulate broad public policy.”

Brodsky said courts in other noncampus settings have found options to allow the accused to question an accuser’s account without direct confrontations.

“The guidance provided helpful insight into best practices for putting together effective truth-seeking investigations that don’t create a hostile environment,” she said. “Revoking the guidance deprives schools of clarity and of helpful advice.”

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