On September 22, Education Secretary Betsy DeVos announced that she was eliminating the regulations put in place by the Obama administration in 2011, which directed college campuses and universities to crack down on allegations of sexual assault or risk losing federal funding. The guidelines have generated fierce controversy since their inception, mandating that schools hire a Title IX coordinator to oversee an investigation and provide a grievance procedure where both sides were allowed to offer witnesses and evidence, but where cross-examination of the accuser was strongly discouraged. Mediation, even if both parties agreed to it, was forbidden. Perhaps most controversial of all, the schools were required to apply a preponderance-of-the-evidence standard, meaning that the accused must be held responsible if the proof amounted to 50.01 percent.
The Trump administration’s rescission of the guidelines was decried by sexual assault survivors, their advocates, 32 Democratic senators, and many prominent feminist organizations who believed they played a crucial role forcing schools to confront accusations that many had swept under the rug. But an unlikely group of allies hailed the decision as long overdue. Yes, there were the usual suspects: conservative Republicans, criminal defense attorneys, and male students who believed they were wrongfully disciplined—even expelled—without due process. But the coalition also encompassed a sizeable number of prominent feminists and left-of-center legal scholars, who found themselves in somewhat bewildered agreement.
In making the announcement, DeVos noted that the guidelines had been imposed without “notice and comment”—that is, a chance for the public to weigh in. After issuing a four-page question-and-answer document to serve as a placeholder, the Department of Education has formally invited interested parties to offer their thoughts.
As law professor, feminist, and criminal defense attorney, I have written and thought about this issue quite a bit since reporting on a troubling case out of the University of California San Diego for Politico Magazine. In that case, “John Doe” was suspended for more than a year—amounting to a de facto expulsion, because he would have to reapply for admission—after a finding that he digitally penetrated “Jane Roe.” (Their true names are not part of the public record.)
The Title IX investigator interviewed 14 witnesses; John was not provided with their statements. Jane’s accusation was bracketed by two others: that John had raped her the night before and retaliated against her afterward, neither of which the Title IX investigator found to be supported by a preponderance of the evidence. At the hearing, Jane said “I don’t remember if I said yes or no” to the previous night’s sex, and testified that the sex they had the following night was consensual. John Doe submitted 32 questions to ask Roe; the hearing officer asked only nine. When Doe appealed, his punishment was increased without explanation.
John took his case to the courts; he prevailed in the trial court and lost on appeal. The school’s handling of John’s case continues to trouble me, in part because there are so many others like it: students suspended or expelled after a process that seems to afford them little ability to defend themselves against accusations that may not stand up to scrutiny.
It is important that schools take sexual assault allegations seriously and deal with them appropriately. Many women are subjected to sexual assault on campuses and the consequences can be life-lasting. At the same time, a finding that a student has committed a sexual assault or sexual misconduct can carry severe consequences, including suspension and expulsion.
Given the stakes, it is important to get it right. That means imposing a higher burden of proof than a preponderance of the evidence, which requires a finding against the accused even if there is 49.99 percent possibility that the allegations are not true. Instead, adjudicators should use the standard of clear and convincing evidence—which is still a rung below the beyond-a-reasonable-doubt standard used in criminal trials—and find the accused responsible if the accusation is proved to be highly probable or reasonably certain. It is also critical to offer some form of meaningful cross-examination, whether it is through an attorney or an advocate trained in that role. The Title IX investigator should not serve in the dual role of factfinder, but instead pass on the report, witness statements, and other evidence—all of which should be provided to the accused—to a three-member board that includes tenured faculty, who are more immune from political pressure.
Discipline such as long-term suspension and expulsion should be used only in the most extreme cases. The 2011 guidelines defined sexual assault as any “physical sexual acts perpetrated against a person’s will or where a person is incapable of giving consent due to the victim’s use of drugs or alcohol.” That encompasses conduct that ranges from an unwanted touch or kiss to rape. In some of these cases, it may make sense to provide the parties with an alternative to the adversarial system. If both parties agree to it, schools should offer the possibility of mediation or restorative justice, where the two sides engage with trained professionals in a process that is designed to hold the student accountable for the conduct and make reparations designed to bring healing to the student who was harmed. Where the allegations involve potential crimes and the accuser wishes to go forward with a criminal investigation, the school should still conduct its own process while making sure it does nothing to interfere with the ongoing criminal case.
Finally, given what we know about the disproportionate impact of disciplinary policies on black youth, it is critical that the Department of Education keep data that will allow an assessment of whether racial bias infects the adjudication of sexual assault complaints. In the past, the department has kept such data on non-sexual assault disciplinary procedures in elementary and high schools, with alarming results, including a nationwide statistic that black children are suspended and expelled at three times the rate of white children.
In 2016, California’s Lodi Unified School District, which enrolls nearly 30,000 students, reached a settlement with the DOE’s Office of Civil Rights after a study showed that black children were more than five times more likely to be suspended than white children for willful defiance or disruption and nearly seven times more likely to be suspended for tardiness or truancy. Sadly, there is little reason to believe that the results would be much different in the context of sexual assault, particularly given our history of stereotyping young black males as sexual predators.
Staking out a position for due process should not be a matter of identity politics. It should be a matter of justice. Unfortunately, the 2011 guidelines have cleaved the left wing, with feminists who denounce DeVos’ decision lobbing verbal grenades like “rape apologist” at anyone who believes that the guidelines, however well-intentioned, produced unjust outcomes and were badly in need of revamping. It is time to stop the name-calling and the vitriol and time to work together to create a system where life-altering findings are based on reliable evidence, a robust standard of proof, and a process that is fair to both sides.