By Teresa R. Manning
Monday, August 24, 2020
August has been a big month for Title IX, the federal law
banning sex discrimination at schools receiving federal funds. Two federal
district courts allowed the Trump administration’s new Title IX regulations to
take effect on schedule (August 14), and at least two schools, Princeton and
Tulane Universities, announced they are creating two disciplinary tracks for
campus sexual-misconduct complaints — one reflecting federal Title IX policy
and the other reflecting the school’s own policy. Given the history of Title IX
and the politics of campus sexual-assault allegations, this “two-track” approach
should be closely watched.
Title IX was an uncontroversial 1972 ban on sex
discrimination in education that became controversial when it was used to fund
women’s college sports — and defund men’s — and was later applied to sexual
misconduct, considered as a form of sex discrimination. This latter development
was originally limited to quid pro quo propositions — high grades in
exchange for sex, for example — but later was extended to the idea of “hostile
environment” sex discrimination and then grew to include even the crime of
violence, or sexual assault, as sex bias. These expansions came mostly from
bureaucrats in the Clinton and Obama Education Departments — with the help of a
few liberal judges — but were well received by feminists on campus, especially
in the Title IX office, which quickly became known as the “campus sex police,”
eagerly investigating and punishing any student accused of sexual assault.
Wrongly accused students then began to successfully sue their schools, claiming
due-process violations or contractual breaches of student handbooks when Title
IX offices presumed guilt, withheld evidence, and banned the live questioning
of witnesses or accusers.
The new regulations restore balance to these Title IX
proceedings by mandating basic due process, such as the presumption of
innocence, the right to see evidence, and, in higher education, the right to a
live hearing to question accusers and cross-examine witnesses, among other
things.
They also restore an objective and more education-related
definition of “hostile environment” sex discrimination, based on a 1999 Supreme
Court case, Davis v. Monroe County Board of Education, which found that
Title IX holds schools responsible only for “conduct on the basis of sex” that
is “so severe, pervasive and objectively offensive” that it effectively denies
educational access. The new regulations also include two other categories of
prohibited conduct — quid pro quo propositions and sexual assault.
Opponents of the new regulations quickly challenged them
in court, however, claiming they were arbitrary and capricious and therefore
should not take effect. Judges in New York and D.C. last week disagreed,
finding that Trump’s Education Department had considered public input and had
explained its rationales (the rule was issued with 2,000 pages of comment).
The court complaints (four were filed) object to the Davis
standard, arguing that some acts may be severe but not pervasive — what if a
student is shown pornography but only once? — while other acts may be pervasive
but not initially severe, such as recurring taunts of a sexual nature. Must a
student wait until educational access is “effectively denied” before
complaining to the Title IX office?
Actually, yes. Because Title IX is quintessentially a
guarantee for educational opportunity and not a sex-crimes law, it should apply
only when educational opportunity is violated. In effect, the new regulations
help bring Title IX back to that original purpose. (In fact, because the last
category of prohibited conduct, sexual assault, presumes that such opportunity
is violated, it deserves more scrutiny by the courts and others.) Schools are
free, however, to ban taunts or pornography or any other “conduct on the basis
of sex” in their own student codes, and now Princeton and Tulane have done just
that: They are devising their own sexual-misconduct policies, presumably with
their own definitions, separate from Title IX.
Is this a move to evade the new due-process requirements?
At Princeton, for example, its separate track allows for written
cross-examination of witnesses, while the Trump regulations require a live
hearing with in-person questioning of parties and witnesses, stating, “Such
cross-examination at the live hearing must be conducted directly, orally and in
real time by the party’s advisor of choice.”
If evasion is the intent of such schools, they should
realize that this probably won’t work:
While not every complaint is a Title IX complaint, every
school program, including disciplinary procedures, must comply with Title IX.
And due-process deprivations can themselves become a Title IX issue if they
favor one sex. One court explained: “Title IX . . . is understood to ‘bar the
imposition of university discipline where gender is a motivating factor in the
decision to discipline.’” In effect, if procedural problems suggest sex bias,
even on a non–Title IX disciplinary track, an accused student can invoke Title
IX as a shield to ensure evenhandedness.
But even more simply, courts are increasingly requiring
schools to provide due process, including live hearings in sexual-misconduct
cases, as a matter of fundamental fairness rather than regulatory mandate. That
was the result of Doe v. University of the Sciences in Philadelphia, a
Third Circuit case decided earlier this year: The court there found that
procedural deficiencies violated both Title IX and the school’s student
handbook, which guaranteed “fair” and “equitable” treatment of students. The
court additionally noted that fairness was also required by state case law and
the Pennsylvania Administrative Code, which governs private as well as public
institutions. The court insisted that “basic fairness in the context of sexual
assault investigations requires that students accused of sexual assault receive
these procedural protections.” For the Third Circuit, which also covers
Princeton, N.J., such “procedural protections” include live hearings and cross-examination.
Princeton’s general counsel should have a look (will written cross-examination
suffice?).
Of course, schools would do well to include due-process
protections in all of their disciplinary tracks; but given the seriousness of
sexual misconduct and the history of Title IX abuses, discipline on this second
track will be closely watched for fundamental fairness — at Princeton and
Tulane and elsewhere.
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