Myths and Misinformation Make for Bad Policy
By Alexandra Brodsky
Secretary of Education Betsy DeVos is the least popular member of Trump’s cabinet, which is saying something. Critics have blasted the Michigan billionaire for her inexperience, opposition to affirmative action, support for privatization, and her first official act as secretary: reversing a key policy guidance protecting transgender students. As an attorney who represents girls facing discriminatory discipline and harassment at school, to say that DeVos endangers my clients’ educations is no exaggeration.
Yet over the last month, some academics and attorneys have celebrated DeVos’s decision to rescind yet another Obama-era guidance, known as the 2011 Dear Colleague Letter. That letter outlined schools’ longstanding legal responsibility to address student reports of sexual assault.
Recently, The American Prospect published a piece by Lara Bazelon heralding DeVos’s decision as an opportunity to reign in schools that have unfairly punished students accused of sexual harassment. Her diagnosis, much like DeVos’s, relies on an inaccurate and incomplete account of the issues and how schools and the federal government have responded.
Bazelon points to a case involving the University of Southern California (USC) as a damning illustration of this “Dear Colleague Letter” policy. USC suspended a male student for assaulting a female classmate after an investigation marked by significant procedural errors, the most troubling one being that “John Doe” was allegedly denied access to the full evidentiary record.
But rather than support DeVos’s agenda, the story Bazelon tells is in fact a ringing endorsement of the 2011 policy. Every alleged procedural error that Bazelon lists, like the failure to share evidence, is a violation of the plain language of the Dear Colleague Letter. So too were the similar alleged errors DeVos listed when she announced her intention to repeal the guidance. Repeatedly, the letter stressed that both complainants and respondents must guaranteed the same rights and responsibilities throughout an unbiased investigation—and must have access to all evidence.
If true, the USC allegations are terrible, as are the accounts DeVos uses to support her agenda. There is no doubt that schools commit procedural errors that hurt students on both sides of disciplinary hearings for sexual assault and other violations.
But stories like John Doe’s don't justify rescinding the 2011 guidance, and they don’t erase the many injustice survivors still face, even in the wake of significant reforms over the past few years. I currently represent three young women who were subjected to sexual and racial harassment while students at Pennridge High School in Pennsylvania. Each reported the abuse, including rape, to administrators multiple times. No investigations were ever conducted; no interventions ever planned. All of our clients left the school at principals’ urging. Their harassers graduated without issue.
Institutional betrayals of victims don’t negate or excuse mistreatment of accused students. But they do undermine the narrative spun by critics of a pendulum that has swung “too far” in favor of survivors. That story propels the Department of Education’s current campaign to roll back Title IX protections to create a system that survivors and their advocates rightly fear will be anything but balanced and effective. We must develop fair processes for all students, but we can only get this right if we accurately represent the problem and the current state of the law.
There, Bazelon falls short, misstating the contents of the 2011 guidance and overlooking critical elements of the existing law. In her recent Prospect piece, for example, Bazelon writes that, under that guidance, “cross-examination of the accuser was strongly discouraged.” That’s simply not true. The letter, which included both established law and non-binding recommendations, merely advised schools to arrange for both parties to direct questions through an intermediary rather than directly interrogate each other: Where did I touch you then? How did I force myself into you? Why didn’t you fight me harder? Even in criminal trials, judges may forbid this kind of confrontation when defendants represent themselves. Disturbingly, DeVos’s new guidance appears to permit such direct questioning.
Bazelon also presents a red herring when she worries that Title IX, and specifically the 2011 policy, push schools to harshly sanction minor transgressions. Under longstanding rules a school is only required to address harassment that is severe or pervasive.
Bazelon further argues that schools should only find students responsible for sexual harassment if there is “clear and convincing evidence.” To justify her position, she compares this standard to the slightly higher level of criminal evidence required for conviction and incarceration, “beyond a reasonable doubt.”
But schools aren't criminal courts. While suspension is a grave punishment, Title IX investigators can’t send students to prison. That’s why schools borrow the lower standard of evidence from civil lawsuits, where other sanctions are on the line. Bazelon leaves out that this standard, the “preponderance of the evidence,” is the same one the vast majority of schools has long used for all other disciplinary hearings, including for violence without a sexual element.
If the department were to adopt Bazelon’s proposal, schools would then require more evidence for investigations of sexual assault than investigations of any other disciplinary violation, including criminal conduct. That approach suggests that the educations of alleged victims, who are disproportionately women and LGBTQ people, are not as worthy of protection as any other students’—and that these survivors are uniquely worthy of skepticism.
However, Bazelon and I both agree that universities and K-12 schools must track the racial impact of discipline. Data show that universities and public schools across the country disproportionately discipline students of color, particularly black students. While the federal government already requires limited data collection for K-12 schools, educators, including those in the country’s colleges and universities, should going beyond these mandates to analyze not just who is being punished but for what kinds of offenses. If students of color are disproportionately disciplined for sexual harassment, schools must root out the structures that promote or permit this discrimination.
These efforts can and must be coupled with continued support for victims. Too often, administrators rely on racist stereotypes to sexualize and doubt young survivors, particularly black girls. If these students are forgotten in the fight against racism, we will undoubtedly lose.
Alexandra Brodsky is a Skadden Fellow at the National Women’s Law Center.
Improving Upon Title IX
A response by Lara Bazelon:
I have spoken with Alexandra Brodsky at some length about these issues in the past, and I respect her advocacy on behalf of sexual assault survivors. Still, I disagree with many of the positions she takes on the now-rescinded Obama administration guidelines. Our disagreement illustrates perfectly how this issue has divided thoughtful, progressive men and women of good will.
The Title IX guidelines often led to bad outcomes, due primarily to both the lack of due process the guidelines provided for the accused. In case after case, schools suspended or expelled students based on vague and ill-conceived directives while under intense pressure to make adverse findings or risk federal investigation and potential loss of federal funding.
Brodsky condemns Betsy Devos’s decision to rescind the guidelines and criticizes me for “an incomplete and inaccurate account of the issues.” Boiled down, Brodsky’s argument is that the guidelines were crucial to getting justice for survivors of sex crimes. Any cases involving problematic outcomes for the accused are due to faulty implementation by campus administrators, not the guidelines themselves, she says.
I don’t agree, but before I get to that, let’s take a look at the toll the guidelines have exacted. Some of the suspended and expelled students—nearly all of them male—filed lawsuits against the schools claiming that they were wrongfully accused and punished without basic due process. Some of them also claimed that they themselves were the victims of gender-based discrimination. Many of them won.
I wrote extensively about one of these cases for Politico, in which a University of California San Diego student, “John Doe,” was found responsible for digitally penetrating a female student he was dating without her consent. He was de facto expelled—suspended for more than a year and required to reapply for admission. This punishment, which was increased without reason after he appealed, was imposed after a hearing in which he was denied any meaningful way to cross-examine his accuser. He was also denied access to the witness statements obtained by the investigator and the identities of those witnesses. (After prevailing in the trial court, Doe lost on appeal).
Brodsky makes the argument that Doe’s case is actually “a ringing endorsement of the 2011 policy” because “every single procedural error that Bazelon lists, like the failure to share evidence, is a plain violation of the guidelines.” She notes that the preponderance of the evidence standard imposed by the guidelines, which required schools to hold the accused responsible if the evidence against him amounted to just over 50 percent, is no different than how legal proceedings are conducted in civil courts.
But wait a minute. The guidelines do not require that schools “share evidence.” Both sides are allowed to access “any information that will be used at the hearing.” That does not include the statements of potential witnesses who are not called, or evidence that is not introduced—as is the case with Doe. The guidelines say nothing about the right to cross examination other than to “strongly discourage schools from allowing parties to personally cross-examine or question each other during the hearing.” I have no problem with that prohibition, what I question is the void left in its place. When the university told Doe was told his lawyer was not allowed to speak and that the majority of his questions would not be asked by the hearing officer, the school did nothing that the guidelines prohibited.
Brodsky’s comparison to civil trials fails for this reason. While the evidentiary threshold is the same, the protections are not. Litigants in civil trials have the right to see the evidence in the possession of the other side—not just what it chooses to use in the courtroom. They also have the all-important tool of cross-examination, which the Supreme Court has rightly called “the greatest legal engine ever invented for the discovery of the truth.” And while Brodsky points out that schools can’t send students to prison, permanently separating them from their education is a steep price to pay.
As a dedicated feminist and someone disgusted and horrified by the very real problem of sexual assault, it is hard to take sides against Brodsky. And yet, as a lawyer with nearly two decades of practice experience, I have seen firsthand the awful consequences when a client is wrongfully accused and denied due process.
Brodsky and my debate reverberated when California’s Democratic Governor Jerry Brown vetoed SB 169 on October 15. The bill sought to codify the rescinded Obama guidelines and apply them to students from elementary school through the post-graduate level.
Brown’s veto, a decision he made despite intense lobbying from many feminist groups as well as 30 state senators, may prove to be a turning point. In a letter explaining his decision, he pointed out what many others, myself included, have argued for some time: “Depriving any student of higher education opportunities should not be done lightly or out of fear of losing state or federal funding.” Brown continued, “We have no insight into how many formal investigations result in expulsion, what circumstances lead to expulsion, or whether there is a disproportionate effect on race or ethnicity.”
The issue of race is particularly important and Brodsky gives it short shrift. A study by the Department of Education in 2014 found that suspension and expulsion rates for black students were three times as high as for white students in other kinds of disciplinary proceedings. Given this dubious track record and the anecdotal evidence about racial bias in adjudication of sexual assault cases under the guidelines, there is good reason to believe that race plays an insidious role in determining who is founded responsible for committing sexual assault and what punishment is meted out.
Brodsky agrees with me that it is important for the federal government to collect data on race in connection with campus sexual assault cases (indeed, it is shameful that it has not). She proposes that if a racial skew exists, “schools must root out the structures that promote or permit this discrimination.” The problem with her solution is that one of those racialized “structures” may well be the guidelines themselves—an unintended effect, but a pernicious one. It is yet another reason to be concerned about their impact, relieved at their disappearance, and cautious as we move forward. Lives on both sides have been ruined. We can do better.
Lara Bazelon is an associate professor at the University of San Francisco School of Law, where she directs the Criminal & Juvenile Justice and Racial Justice Clinics.