Campus sexual assault, and how schools handle it, is a hot-button political issue that stirs strong emotions on both sides of the debate. The Obama administration issued far-reaching reforms of campus sexual assault policy under Title IX by conditioning federal funding on schools’ compliance with certain reforms. The result was dozens of lawsuits filed by students who were expelled on the basis of adverse results in sexual misconduct grievance procedures.
Schools were caught in a crossfire. If they followed the rules, they were likely to face lawsuits, but if they failed to comply, they would risk losing federal funding. The changing of the guard from the left-leaning Obama administration to the right-leaning Trump administration added to the confusion. Now, Education Secretary, Betsy DeVos, is proposing new changes to the campus sexual misconduct policy.
Obama Era Title IX Reforms: The 2011 “Dear Colleague” Letter
The Obama administration’s “Dear Colleague” letter, issued by the Office for Civil Rights, required thousands of US institutions of higher education to comply with the following guidelines in order to avoid losing federal funding:
- Apply the “preponderance of the evidence” standard of proof, the standard that is normally used in civil lawsuits. What this means is that a sexual misconduct allegation will be considered proven if the totality of the evidence indicates that the defendant is guilty – at least a 51 percent likelihood of guilt, if one must assign a percentage value to this standard.
- Allow accusers to appeal “not guilty” findings; a result that would place the accused in “double jeopardy” according to some jurists.
- Accelerate the adjudication process to keep it within 60 days, if possible.
- Prohibit the cross-examination of accusers. Although this particular prohibition was strongly suggested rather than required, it could be treated as a requirement by institutions that fear the loss of federal funding.
Many colleges and universities resorted to the “single-investigator model.” This is where a single person would interview the accuser, the accused, and any witnesses, and then draft and submit a report that issues findings and recommendations.
Doe vs. Baum: The Sixth Circuit Court of Appeals Decision
The first rumblings of change came out of the US Sixth Circuit Court of Appeals in the case, Doe vs. Baum, which was an appeal of a 2017 case that was originally filed with the US District Court. The court in Doe vs. Baum ruled that the due process rights of a University of Michigan student were violated when he was expelled after being found responsible for sexual assault without the opportunity to cross-examine his accuser.
According to the opinion, “Due process requires cross-examination in circumstances like these because it is ‘the greatest legal engine ever invented’ for uncovering the truth. Without the back-and-forth of adversarial questioning, the accused cannot probe the witness’ story to test her memory, intelligence, or potential ulterior motives.”
University of Michigan President, Mark Schlissel, expressed the University of Michigan’s opposition to the ruling in no uncertain terms. Since the ruling was based on the U.S. Constitution, however, its authority is superior to the authority of the 2011 “Dear Colleague” letter. Because of the Sixth Circuit Court of Appeal’s limited jurisdiction, however, it only applies in Michigan, Ohio, Kentucky, and Tennessee.
The following are some of the proposed changes to the application of Title IX to campus sexual misconduct allegations:
- Schools would only be required to respond to an actual report of sexual misconduct. In other words, they would no longer be considered obligated to respond because they “knew or should have known” about an allegation or an incident. Even if the new guidance passes, however, schools will not be limited to responding to formal complaints. Their obligation to respond could still be triggered, for example, by multiple verbal complaints to a responsible university official about the same individual.
- Schools would not be required to respond to incidents that occurred off-campus (at a local bar, an off-campus park, or in an off-campus “student ghetto” area, for example). Should a school choose to narrow its own jurisdiction by not responding to off-campus incidents, the alleged victim would be required to contact the civil authorities, such as the police, in order to file a claim.
- The definition of “sexual harassment” would be considerably narrowed. Under the Obama administration guidance, sexual harassment was defined as “unwelcome conduct of a sexual nature.” This has been criticized as so vague that it could be interpreted to include even a polite request for a date. Under the proposed new guidelines, sexual harassment would be redefined 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 school’s education program or activity.”
- Schools would be allowed to apply a stricter standard of proof known as “clear and convincing evidence” to sexual assault grievance proceedings. “Clear and convincing evidence” is a higher standard of proof than the “preponderance of the evidence” standard required by the Obama administration, but it is still a much lower standard of proof than the “beyond a reasonable doubt” standard that applies to criminal prosecutions.
- Mediation would be allowed in sexual misconduct cases.
- The school would be required to allow the accused student to retain an adviser with the authority to cross-examine the accuser. This proposal has drawn strong criticism from victim’s advocate groups.
At the time of this writing, these changes have not yet gone into effect. Although they may never go into effect without amendment, it is likely that whatever guidance does eventually go into effect will not be radically different than what is being proposed right now.
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