No More “Double-Secret Probation”?: Title IX’s Evolving Standards and Due Process in Campus Sexual Harassment and Misconduct Cases

By: Attorney Sven W. Strutz – Weld Riley, S.C.

Last November, Secretary of Education Betsy DeVos proposed a significant overhaul of the rules for colleges investigating complaints of sexual harassment or assault.  This additional step was taken after an April 4, 2011 “Dear Colleague” letter issued by the Obama Administration’s Department of Education was rescinded by the Trump Administration in 2017.

This article will briefly compare and contrast some of the key features of the old Title IX rule (the Obama Administration’s “Dear Colleague” letter) with the proposed new Title IX rule (the Trump Administration’s proposed rulemaking).

A Few Words About “Dear Colleague” Letters

Before comparing the substance of the Obama Administration’s “Dear Colleague” letter to the Trump Administration’s proposed rulemaking, it is worthwhile to address the legal status of “Dear Colleague” letters in general (since there is no “Schoolhouse Rock” cartoon about how such letters come to be).

Within the U.S. Department of Education, the Office of Civil Rights (OCR) enforces various federal statutes, including Title IX.  As part of this enforcement function, OCR has issued “Dear Colleague” letters to advise educational institutions as to the standards that OCR will be applying when enforcing federal discrimination statutes and investigating discrimination claims.

Technically, “Dear Colleague” letters are not binding legal authority.  Instead, they are described as being “significant guidance documents” designed to assist educational institutions in meeting their obligations under the law. Another important function of “Dear Colleague” letters is that they have also been used to reshape existing policy.  The specific guidance contained in a “Dear Colleague” letter may differ in some respects from the judiciary’s interpretation of the federal statutes.  This function of “Dear Colleague” letters has generated some controversy. 

With that procedural explanation, we can return to the specifics of the Title IX issue.

Narrowed Definition of “Sexual Harassment”

United States Supreme Court Justice Potter Stewart once commented on the difficulty of legally defining obscenity—but noted “I know it when I see it.”  While it may be similarly difficult to give a precise legal definition of “sexual harassment,” both the Obama Administration and the Trump Administration have attempted to give more definitive guidance on the issue.

The Obama Administration’s “Dear Colleague” letter defined “sexual harassment” broadly to mean “unwelcome conduct of a sexual nature.”

The Trump Administration’s proposed rule would narrow the definition, have it track more closely to Title VII’s prohibition of sexual harassment in the workplace, to include only “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 recipient’s education program or activity.”

Prospective line-drawing is one of the more difficult tasks in the law.  It is all the more difficult in this inherently sensitive area.  Previously, there was criticism that the Obama Administration definition was too broad.  Likewise, the Trump Administration’s proposed definition can be criticized for being too narrow.

Right to Cross-Examine the Accuser

One of the most controversial issues in this context has been the degree to which due process entitles the accused to cross-examine the accuser.

The Obama Administration’s “Dear Colleague” letter “strongly discourage[d] schools from allowing the parties personally to question or cross-examine each other during the hearing.”

The Trump Administration’s proposed rule would permit live cross-examination—but such questioning would have to be done by a lawyer or other advisor.  The accused could not personally cross-examine the accuser.  And the parties could be placed in separate rooms “with technology enabling the decision-maker and parties to simultaneously see and hear the party answering questions.”

On the one hand, proponents of the rule change argue that there can be no meaningful due process if the accused has no right to cross-examine his/her accuser.  On the other hand, opponents of the rule change contend that the ordeal of cross-examination revictimizes the complaining witness—and could perpetuate the hostile environment that Title IX was intended to eliminate.

No Obligation to Act on Off Campus Incidents Unrelated to School Program

The two administrations have taken very different approaches toward the responsibility colleges should have to police the non-educational activities of students taking place off campus. 

The Obama Administration’s “Dear Colleague” letter required schools “to respond to student-to-student sexual harassment that occurred off school grounds, outside a school’s education program or activity.”  The idea was that students who experience off-campus sexual harassment may continue to feel the effects while on campus. 

On the one hand, this approach was a recognition of the reality that a college student’s life and problems are not confined by the borders of the college’s geographical territory.  On the other hand, expanding a college’s responsibility to governing the student himself/herself (as opposed to merely governing the campus environment) does seem to harken back to the old in loco parentis approach to higher education that student movements were successful in setting aside in the 1960s.

The Trump Administration’s proposed rule would narrow colleges’ responsibility, confining the obligation to investigate to cases where the alleged conduct occurred either on campus or in the context of an educational activity.

Permissive Use of “Clear and Convincing Evidence” Burden of Proof

In the law, the three most common burdens of proof are as follows (in escalating levels of rigorousness):  1) preponderance of the evidence (this is the “50% plus 1” burden that applies in most civil contexts); 2) clear and convincing evidence (this is a heightened/middle burden that applies in some particular civil contexts); and 3) beyond a reasonable doubt (this is the “pretty darn sure he did it” burden that must be met to secure a criminal conviction).

The Obama Administration’s “Dear Colleague” letter instructed colleges to apply the “preponderance of the evidence” standard in determining whether alleged sexual misconduct had actually occurred, while the Trump Administration’s proposed rule would permit (but not require) colleges to adopt the “clear and convincing evidence” standard in making that determination.

Permissive Use of Mediation

Under the Obama Administration’s “Dear Colleague” letter, mediation was permissible in some sexual harassment cases.  However, it was deemed inappropriate in all sexual assault cases, including cases where the parties voluntarily agreed to participate in mediation.

The Trump Administration’s proposed rule would allow colleges to provide an informal dispute resolution mechanism—provided that both parties voluntarily agree to participate in it.

Conclusion

What does the future hold for the proposed Title IX rules?  The 60-day period for commenting on the proposed rule change has now ended.   But it will likely be some time before final action will be taken by the Department of Education.