In mid-November, The Department of Education released anticipated regulation proposals for schools investigating allegations of sexual misconduct under Title IX. They replace guidance set by the Obama administration in a 2011 “Dear Colleague” letter. When Secretary Betsy DeVos rescinded the letter in fall 2017, she criticized it for requiring school procedures to address sexual misconduct that, she believed, often resulted in premature assumptions of guilt, victim humiliation and re-traumatization.
The New York Times first broke news of the impending proposals late in August, and the actual proposed regulations seem to largely match with those early reports. Below are some of the proposals stirring up discussion and controversy.
An accused person would have a guaranteed right to cross-examine their accuser. The Obama administration discouraged cross-examination because of further trauma it could cause victims.
The new guidance narrows the definition of sexual harassment that schools are required to investigate. The proposals define it as “unwelcome conduct on the basis of sex that is so severe, pervasive, and objectively offensive that it effectively denies a person equal access to the recipient’s education program or activity.”
Schools could choose the standard of proof to apply in their investigations — either a preponderance of the evidence standard or clear and convincing evidence. The Obama administration’s guidance directed schools to use a preponderance of the evidence.
Schools would have more freedom to use informal resolution, such as mediation. Under the proposed regulations, they could adopt an informal resolution at any time during an investigation, as long as the parties voluntarily agree. Obama-era guidance discouraged mediation.
Schools would be responsible for investigating formal complaints only about incidents said to have happened on campus or within a school program and for formal complaints made to a school official who has the authority to take action on the situation.
In practice, implementing each of the proposed regulations may not be equally straightforward. And they’re not likely to go into effect without criticism and scores of comments during the 60-day public comment period.
Informal Resolution
Derek Teeter, a partner at Husch Blackwell who represents higher education institutions, said the option to use informal resolutions would likely appeal to schools because formal resolution is a rigorous process, especially for conduct that may be inappropriate but doesn’t rise to the level of criminal sexual violence.
“I think there will be a much greater appetite to have [people] on campus who are trained as mediators to have that facilitated resolution where you’re not even really determining what happened per se, you’re just helping the parties reach an agreement about what’s going to happen going forward,” he said.
But he cautioned that schools choosing to use informal resolution practices would have to make sure agreement to them by the parties is truly voluntary. Policy language that describes informal resolution as the preferred route, or if it tries to compel parties to go through informal resolution first, could be coercive.
“To me that’s not voluntary, that would be basically mandated use of informal resolution, and the proposed regulation says you can’t have that,” he said. Teeter added schools would probably need to have documents for students involved in an investigation that make sure they understand what the informal resolution process is and what rights they’re waiving by using it.
Teeter said he would anticipate the Department of Education getting comments that the regulations should not apply to cases involving sexual misconduct of employees. In particular, schools would likely argue they have the right to fire employees for misconduct without having to hold a formal hearing, especially in at-will employment states, he said.
“The student part of this is where the political differences start to be apparent and where you have divergence of opinion,” Teeter said. “But I think if you went to almost any institution, they would say, we ought not to be put in the position of having to have trial-like hearings before we can terminate an employee that we think has engaged in harassment.”
Much criticism of the guidance related to an accused party’s right to cross-examine their accuser is politically charged. But Teeter said a less politically charged criticism is that the guidance guaranteeing cross-examination is vague enough to need clarification. The proposed regulations don’t contain definitive rules to use in cross-examination, such as when questioning crosses the line from legitimate to abusive.
“Are we supposed to be using the Federal Rules of Evidence now in these hearings, or not?” Teeter said. “It has to be the case that schools will maintain some ability to control the manner in which questions are asked, and to keep those questions relevant, but there’s no indication from the Department [of Education] as to what it expects those rules to look like.”
Just Because They Can, Doesn’t Mean They Will
The proposed regulations may as a whole give schools more flexibility in setting their own investigation processes, but that doesn’t mean all the options now available are necessarily advisable. Even though schools could choose to use a clear and convincing evidence standard as the burden of proof in their investigations, Teeter said he believes the switch away from using a preponderance of evidence is unlikely to be common.
“I think it would be politically challenging, to say the least, for most schools to go back to a clear and convincing standard,” he said.
Matt Cron, a partner at civil rights firm Rathod Mohamedbhai, who spoke with Law Week when news of the proposals broke in the summer, said the implications of a particular burden of proof have to be considered in the context they’re used in, and because an accused person doesn’t face criminal repercussions through a school’s administrative process, it doesn’t make sense to use a criminal level of due process in an educational setting.
“I do believe that the rights of the accused are important,” he said, but added he believes that emulating a criminal due process weighs too heavily in favor of an accused person. Cron said if a victim can meet a preponderance of evidence standard that they suffered harassment but can’t meet a higher evidence standard, the lack of consequences for the accused as a result can have significant consequences.
“She or he will have to continue going to school with the assailant or the harasser, whatever the case may be, and that can have hugely harmful consequences for the victim.”
Another controversial regulation would hold schools legally responsible for investigating only complaints of sexual misconduct made through a formal channel to an official who has authority to take corrective action. This wouldn’t hold lower-level school officials responsible for not escalating reports made to them to a higher authority who could do something. But Teeter said schools likely keep their own policies anyway for that type of mandatory reporting.
“I do think it matters in terms of the administrative risk a school has, although it’s another area where I think most schools will continue to have a policy that says [they] expect all of [their] employees to escalate these complaints, even if they aren’t somebody who has corrective power.”
Cron said he sees the change by the Department of Education as a superficial, administrative hurdle set up in order to reduce the number of complaints filed. While school officials have to have actual knowledge of conduct to be responsible for investigating it, he said, that bar can be met without a formal complaint.
“So for example, if a school hallway is decked with graffiti of swastikas, school officials should know that there a hostile educational environment has been created, whether or not they receive a formal complaint,” he said. “And so there’s this idea that if you can’t show actual knowledge, if there’s not an email, email communication or direct complaint filed, the school can’t be shown to have actual knowledge. That’s just simply not true under existing case law, because if you can show a pervasive problem in the school, we can reasonably assume that school officials would have notice of the problem.”
The standard for proving a school didn’t respond adequately to a complaint it had knowledge of is already high under case law. It was set by a 1998 Supreme Court case, Gebser v. Lago Vista Independent School District. In the case, a high school student sued the school district under Title IX after a police officer discovered her having a sexual relationship with a teacher. The district actually didn’t have any policies for reporting or preventing sexual harassment. But the Supreme Court found in a 5-4 decision that the Lago Vista district wasn’t responsible for the teacher’s conduct, since the district hadn’t known about it while it was ongoing.
“[The standard requires] that their response to the report was clearly unreasonable in light of the known circumstances. So again, there’s simply a lot of ways that a school can legally protect itself,” Cron said. “And I very much question whether school institutions need any more help.”
— Julia Cardi