A Note to President Biden: Do Not Eliminate Trump's Title IX Changes
Though it has only been 10 months since Biden was sworn into office, his administration has plainly indicated its intent to alter the changes made to the Title IX law under former Secretary of Education Betsy DeVos. On March 8th,, the President issued an executive order directing the Secretary of Education to “...review all existing regulations, orders, guidance documents, policies, and any other similar agency actions...that are or may be consistent with the administration’s policy” (EO 14021). On October 20th, Catherine Lhamon was confirmed to lead the Department of Education’s (DOE) Office of Civil Rights (OCR), which oversees the implementation of the Title IX law. Lhamon, who had presided over the OCR during the Obama Administration, was confirmed along with a party-line vote with vice president Harris casting the tie-breaking vote. (Cohn)
Throughout the Presidential campaign, Biden indicated that he would revive Obama-era guidelines to how colleges investigate sexual harassment and assault under Title IX, however, he made no indication to whether he would revive the 2011 “Dear Colleague” letter from the OCR. (Orkand and Dion) As a candidate, he lamented that the Trump regulations were an effort to “shame and silence survivors,” arguing that they gave “colleges a green light to ignore sexual violence and strip survivors of their rights.” (Smith) Yet, despite some of the drawbacks of the DeVoses Title IX rule, it would be irresponsible for Biden to replace the previous administration's policies with those enacted by the OCR under Obama. If so, American universities would return to a loathsome era of curbed speech protections, inadequate due process, and a range of other distinguishing flaws.
Free Speech, the OCR’s “Dear Colleague Letter,” and Trump Administration Changes
Under the Obama administration’s Title IX rule, free speech and academic freedom were compromised by an overly broad definition of “hostile environment,” alongside a failure to distinguish between protected speech and conduct. In its earlier instruction from 2001 and 2003, the OCR maintained that “all actions taken by OCR must comport with First Amendment principles….” (AAUP) However beginning in 2011, the OCR broadened its description of sexual harassment in a manner that limited the scope of permissible speech. (AAUP) Specifically, the agency defined sexual harassment as any “...unwelcome conduct of a sexual nature [that] can include unwelcome sexual advances, requests for sexual favors, and other verbal, nonverbal, or physical conduct of a sexual nature…” (77). Problematic was the definition’s conflation of severe sexual violence (ex. Rape, sexual assault, battery, coercion), to a hostile environment based upon speech, despite American law’s clear distinction between them. On a similar note, by failing to separate between these two activities, the OCR virtually eliminated the requirement that speech create a “hostile environment,” thereby expanding the inexhaustible definition of what could count as harassment. Thus, by conflating conduct with speech, while also failing to distinguish between “hostile-environment” sexual harassment and protected speech, punitively harsh measures were regularly taken against students as well as faculty in teaching, research, and extramural contexts (particularly non-tenured faculty). (Lukianoff and Goldstein)
Many cases substantiate the harsh measures explained above. In 2015, Laura Kipnis, a professor at Northwestern University, was charged with retaliation under the Title IX law for publishing an article in the Chronicle for Higher Education expressing disagreement over a university policy forbidding romantic or sexual relationships between faculty and undergraduate students. (Friedman) That same year, LSU professor Teresa Buchanan was removed from her teaching position for her “...alleged offenses [of] saying, ‘fuck no’ [in class]..., making a joke about sex declining in long-term relationships, [and] using the word ‘pussy’ in an off-campus conversation with a teacher.” (Friedman) Equally absurd was the rationale offered by the university for her termination. A DEI committee had “...determined that there was no evidence that her words were ‘systematically directed at any individual.’ Nevertheless, the committee said her language created a “‘hostile learning environment’ that constituted sexual harassment” under Title IX. (Friedman) In November 2014, a student publication at Michigan Technological University was placed on a two year probation and denied a portion of its funding for publishing a satirical article about a fictional sexually harassed man. Despite acknowledging that the article was satire, the university argued that it could be construed as “advocating sexual violence.” (AAUP) On college campuses, students and faculty should be free to express disagreement or dissatisfaction with fellow university members. It is entirely unwarranted for “questionable,” contentious and sexually suggestive speech (like the above mentioned cases) to be relegated to a form of sexual harassment or a hostile environment.
Aside from the flagrant violations of student and faculty speech, the OCR’s definition was seriously misaligned with judiciary practices regarding peer-on-peer harassment. In particular was the OCR’s divergence from the landmark SCOTUS case Davis v. Monroe County Board of Education (1999), which defined student-on-student harassment as conduct “so severe, pervasive, and objectively offensive that it effectively bars the victim’s access to an educational opportunity or benefit...” (Davis v. Monroe) Under this definition, educational institutions are provided with clear boundaries between conduct denying equal educational access and constitutionally protected speech that is not harassment. The careful balance of institutional obligations and free speech protections was precisely why the Trump administration employed it in its definition of peer-on-peer harassment, which declared it as “[u]nwelcome conduct determined by a reasonable person to be so severe, pervasive, and objectively offensive that it effectively denies a person equal access to the recipient’s education program or activity” (§ 106.44(a), emphasis added). And while it would be preferential to utilize a “severe or pervasive” standard (as opposed to “severe and pervasive”), the careful balance afforded under the revised definition protected the rights to free expression from being stripped as a result of institutional action or inaction.
Due Process: From disregard to elevated status
The “Dear Colleague” letter also resulted in great miscarriages of justice with regard to due process. Under the OCR’s policies, elementary protections for the accused, including cross-examination, access to evidence, and the separation of the investigator from the prosecutor were discouraged or actively discarded. (Lowry) Consequently, many schools simply eliminated other important due process protections, including the presumption of innocence for respondents, providing both parties with notice and adequate response times, and allowing respondents access to training materials used in Title IX training. (Harris & Johnson) The letter also required universities to adopt the “preponderance of evidence” standard (as opposed to the “clear and convincing” standard), which in combination with an absence of other protections (and an overbroad definition of harassment) essentially produced a lopsided system against accused students. The resulting 347 federal lawsuits against university Title IX procedures reflected a lack of judicial confidence in the integrity of campus proceedings, alongside the extensive disregard for important constitutional protections. (Harris & Johnson)
Several federal courts have issued rulings in favor of accused students, with district courts in the Third, Fourth, and Sixth Circuits providing for the most rulings in this category. (Harris & Johnson) In 2017, for example, the Sixth Circuit in Doe v. University of Cincinnati ruled in favor of an accused student, who was forced to proceed through a disciplinary hearing in which neither the complainant nor the investigator appeared. In a unanimous opinion, the panel found that the university “...must provide a means for the [disciplinary] panel to evaluate an alleged victim’s credibility…” (Id at 406, emphasis added) and that “...the opportunity to question a witness and observe her demeanor while being questioned can be just as important to the trier of fact as it is to the accused…” (Id at 401). (John Doe v. Univ of Cincinnati) Later in 2018, the Sixth Circuit rebuffed the University of Michigan’s argument that cross-examination was not constitutionally required in campus hearings, stipulating instead that, “...written statements cannot substitute for cross-examination.” (Doe v. Baum, Id at 582) During the summer of 2019, the Seventh Circuit reversed a lower court holding against an accused Purdue University student. In its opinion, the court noted several problematic due process violations, such as the university’s failure to interview the accused student’s roommate, a denial of the investigative report to the accused student, and a false confession that had never been prepared. (Doe v. Purdue Univ) Subsequent 2019 rulings from District Courts in Colorado, New Mexico, Texas, Mississippi, and California, all of which ruled in favor of cross-examination, underscore the importance of this institutional right in the university context.
The Title IX changes implemented by Devos in 2020 recognize the significance of protecting due process on campuses. The revised regulations include clear and fair procedures for adjudicating Title IX complaints, namely a requirement of impartiality in the adjudicatory process (§ 106.45(b)(1)), the providing of a detailed notice of allegations, and a presumption of innocence (§ 106.30(b)(5)), a live hearing and cross-examination obligation (§ 106.45(b)(6)), and an ability for both parties to appeal disciplinary decisions. (§ 106.45(b)(4)) Notable as well is the component of § 106.45(b)(6) requiring that hearing panelists “...cannot be the same person(s) as the Title IX Coordinator or the investigator(s)...”. The revised rules also permit schools to choose between the “preponderance of evidence” and “clear and convincing” standards but outlined that institutions must use the same standard in faculty and student adjudication. (§ 106.45(b)(3)) And though the regulations focus extensively on the due process rights of respondents, they also include significant control and privacy safeguards for complainants. For instance, the DOE explains in its commentary on the regulations that universities can “...decide which of their employees must, may, or must only with a student’s consent, report sexual harassment to the recipient’s Title IX Coordinator (a report to whom always triggers the recipient’s response obligations, no matter who makes the report). Similarly, medical records may only be provided by complainants if they are offered or if they consent to utilize them in proceedings. (§ 106.45(b)(5)) Finally, complainants can also decide to resolve their disputes through an informal resolution process, encouraging more complainants to come forward if they’re hesitant about resorting to a formal adjudicatory process. To put the point briefly, the regulations enacted by Devos and the Trump administration are far preferable in protecting due process rights when compared to what was exercised during the Obama administration.
Other Notable Flaws and Alterations with the 2020 Policy
While free speech and due process rights were notable amongst the concerns with the previous Title IX rule, there were other significant flaws that deserve mentioning. A chief topic amongst those in administrative law was the previous rule’s disregard for a period of public notice and comment before its enactment. Under the Administrative Procedure Act, agencies must include these requirements in the informal rulemaking process. (5 U.S. Code § 553) Contrasting this was the two-year public comment period enacted by the Trump administration, in which the review and feedback of nearly 100,000 commentators were incorporated into the final 2020 rule. (Kruth)
The Trump administration’s final rule also required schools to train campus tribunals using published materials and that “Title IX Coordinators, investigators, decision-makers...receive training on the definition of sexual harassment in §106.30, the scope of the recipient’s education program or activity, how to conduct an investigation and grievance process including hearings, appeals, and informal resolution processes...and how to serve impartially...by avoiding prejudgment of the facts at issue, conflicts of interest, and bias.” (§106.45(b)(1)) To ensure that training materials are actually unbiased, the final rule also demands that they be made public or available to recipients upon request. (§106.45(b)(10)) Before enacting this requirement, a large number of universities utilized guilt-assumptive training materials. For instance, in Doe v. Trustees of the University of Pennsylvania, the Eastern District Court of Pennsylvania found that Penn panelists had received training alleging that perpetrators “...may have many ‘apparent positive attributes such as talent, charm, and maturity.” (Id at 817) Because of this, universities often tried to conceal their training materials when asked to produce them in a court of law. (Doe v. Johnson & Wales University)
As the Foundation for Individual Rights in Education has noted, “[t]here is no simple way to address sexual misconduct on college campuses. Doing so effectively and fairly requires championing the rights of all students, whether they are complainants or the accused.” (Cohn) And though it will likely take a significant degree of time if Biden chooses to upend the Trump administration’s final rule, it should be wary of sacrificing the various safeguards for speech, due process, and proper lawmaking that came from the modified rule.
Sources
“Executive Order 14021 of March 8, 2021, Guaranteeing an Educational Environment Free From Discrimination on the Basis of Sex, Including Sexual Orientation or Gender Identity.” https://www.federalregister.gov/documents/2021/03/11/2021-05200/guaranteeing-an-educational-environment-free-from-discrimination-on-the-basis-of-sex-including
Cohn, Joe. “Breaking: Campus Due Process in the Crosshairs as the Senate Confirms Lhamon on Party-Line Vote.” https://www.thefire.org/campus-due-process-in-the-crosshairs-as-the-senate-confirms-lhamon-on-party-line-vote/
Orkand, Seth B, and Dion E., Kathleen. “President Directs Department of Education to Begin Dismantling Trump-Era Title IX Sexual Misconduct Regulations.” https://www.natlawreview.com/article/president-directs-department-education-to-begin-dismantling-trump-era-title-ix
Smith, Tovia. “Biden Begins Process to Undo Trump Administration's Title IX Rules.” https://www.npr.org/2021/03/10/975645192/biden-begins-process-to-undo-trump-administrations-title-ix-rules
“The History, Uses, and Abuses of Title IX.” American Association of University Professors 25, no. 5 (2016): 77, 86-87.
Lukianoff, Greg, and Goldstein, Adam. “John McWhorter Is Right about the Chilling Effect of Title IX Campus Safetyism.” https://www.thefire.org/john-mcwhorter-is-right-about-the-chilling-effect-of-title-ix-campus-safetyism/
Friedman, Jonathan. “And Campus For All: Diversity, Inclusion, and Freedom of Speech at U.S. Universities.” 28, 60-61.
Davis v. Monroe County Board of Education, 526 U.S. 629, 630.
Lowry, Rich. “Fixing the Kangaroo Courts.” https://www.nationalreview.com/2018/08/campus-sexual-assault-courts-due-process-needed/
Harris, Samantha, and Johnson, KC. “Campus Courts in Court: The Rise in Judicial Involvement in Campus Sexual Misconduct Allegations.” NYU Journal of Legislation and Public Policy 22, no. 49: 64–65, 73, 95.
John Doe v. Univ of Cincinnati, 872 F.3d 393, 401-406 (6th Cir. 2017)
Doe v. Baum, 903 F.3d 575, 582 (6th Cir. 2018)
Doe v. Purdue Univ, 928 F.3d 652, 658, 662-663 (7th Cir. 2019)
“Nondiscrimination on the Basis of Sex in Education Programs or Activities Receiving Federal Financial Assistance.” https://www.federalregister.gov/documents/2020/05/19/2020-10512/nondiscrimination-on-the-basis-of-sex-in-education-programs-or-activities-receiving-federal
“Title IX Regulations Addressing Sexual Harassment,” Office for Civil Rights, Department of Education, 52-53.
5 U.S. Code § 553 - Rulemaking
Kruth, Susan. “Addressing Common Misconceptions about the New Title IX Regulations.” https://www.thefire.org/addressing-common-misconceptions-about-the-new-title-ix-regulations/
Doe v. Trustees of the University of Pennsylvania, 270 F. Supp. 3d 799, 817
Doe v. Johnson & Wales University, 425 F. Supp. 3d 108
Cohn, Joe. “New Title IX Regulations Carefully Balance the Rights of All Students.” https://www.thefire.org/new-title-ix-regulations-carefully-balance-the-rights-of-all-students/