As we noted shortly after the proposal was initially circulated at the end of November, the resulting changes to implementation and enforcement — though not without room for improvement — would provide an effective framework for combating sex-based discrimination and “dramatically improve free speech and due process protections for students on campus.”
In our executive summary, we highlight some of our main points:
The Foundation for Individual Rights in Education (FIRE) commends the Department of Education for following the Administrative Procedure Act to propose these regulations. The proposed regulations from the Department are a marked improvement over previous departmental policy and guidance in a number of important ways, though there are ways FIRE believes the proposed rules could be strengthened.
FIRE has long argued that everybody on campus benefits from fundamentally fair proceedings. The proposed rules take the rights of both complainants and accused students seriously, and they make important strides toward ensuring that complaints of sexual misconduct will be neither ignored nor prejudged. Though not perfect, the proposed regulations will go a long way towards restoring meaningful due process protections to campuses — to the ultimate benefit of both complainants and respondents alike.
Important protections in the proposed regulations include:
- The proposed regulations define student-on-student sexual harassment in accordance with established Supreme Court precedent in Davis v. Monroe County Board of Education, eliminating the confusion created by prior Department guidance and settlement agreements that have led institutions nationwide to adopt overly broad definitions of sexual harassment that threaten student and faculty speech. The Davis standard ensures that institutions combat discriminatory harassment without infringing on speech protected by the First Amendment.
- The proposed regulations state that institutions of higher education “must provide for a live hearing” when adjudicating claims of sexual harassment or misconduct. Having a live hearing ensures that all parties see exactly the same evidence and testimony that the fact-finder is seeing, so the party can rebut or buttress that evidence and testimony in real time. Importantly, the live hearing requirement corrects prior guidance that allowed, and even encouraged, schools to use a “single investigator” to adjudicate sexual misconduct cases through a series of separate meetings with the parties and witnesses. The elimination of the “single investigator” model is of critical importance to the fairness and reliability of sexual misconduct proceedings. As one federal judge wrote in criticizing Brandeis University’s use of a single investigator model, “The dangers of combining in a single individual the power to investigate, prosecute, and convict, with little effective power of review, are obvious. No matter how well-intentioned, such a person may have preconceptions and biases, may make mistakes, and may reach premature conclusions.”
- The Department’s proposed rules also require that institutions allow both sides to cross-examine (through an advisor) all witnesses at the hearing, including the parties themselves. The Supreme Court has identified cross-examination as “the greatest legal engine ever invented for the discovery of truth,” and a number of courts have ruled, in the context of campus sexual misconduct adjudications, that it is a requirement of due process.
- The proposed regulations require that institutions of higher education give respondents written notice of alleged wrongdoing. The notice requirements provide critical protections for respondents and address serious deficiencies in the adjudication process at many colleges and universities, where students are often expected to begin answering for alleged wrongdoing with very little information about the accusations against them. The regulations also require both complainants and respondents to have an opportunity to review all relevant evidence in advance of a hearing, so that they have a meaningful opportunity to prepare.
- The proposed regulations would require institutions to review all relevant evidence, whether it is inculpatory or exculpatory. While the utility of such a requirement may seem obvious, legal complaints against universities stemming from their adjudication of Title IX claims are rife with allegations that universities have, in fact, ignored critical evidence, whether because of a rush to judgment or simply because of a process that did not provide appropriate avenues for the collection and review of evidence. Thus, this is one of the most significant protections introduced by the proposed regulations.
- The proposed regulations give flexibility to institutions to determine for themselves which standard of evidence to use when adjudicating claims of sexual misconduct, provided that the same standard used in complaints against students is also used in complaints against employees, including faculty. Students, employees, and faculty all deserve robust procedural protections. Institutions should not be permitted to disfavor certain constituencies by requiring lower burdens of proof for them to be punished.
FIRE also believes that institutions should have a robust system for responding to reports of sexual misconduct from complainants, even when those who come forward are not comfortable with filing an official report or with pursuing disciplinary charges against the alleged perpetrator. In such situations, the proposed regulations state that these non-punitive supportive measures may be appropriate to restore or preserve a complainant’s access to the institution’s educational programs or activities. By prioritizing actions aimed at meeting individual needs of complainants, these regulations fulfill the commitment to nondiscrimination that Title IX demands for all students.
FIRE believes that the proposed regulations will greatly improve the fundamental fairness of campus sexual misconduct proceedings.
We again thank the Department for following formal procedures for proposing new regulations, allowing for informed feedback from all stakeholders.
FIRE is grateful for the opportunity to provide our analysis.
Here is a link to our full comment (48 pages), and its three appendices.